Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Khalaf v Commissioner of Police; QLD Protection Security Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATOD 191 Hearing dates: 2 August 2018, last written submissions on 20 August 2018 Date of orders: 28 November 2018 Decision date: 28 November 2018 Jurisdiction: Occupational Division Before: P Durack SC Decision: The Applications for referral of a question of law to the Supreme Court pursuant to s 54(1) of the NCAT Act be dismissed. Catchwords: PROCEDURE –administrative review of decision to revoke security licences under the Security Industry Act 1997 (NSW)- referral of question of law to the Supreme Court – claim that one issue involves consideration of the provisions of the Mutual Recognition Act (C'th) and the application of s 109 of the Constitution – resolution of that one issue will not be determinative –determination of other, unrelated issues may be sufficient to dispose of the proceedings. Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Mutual Recognition Act 1992 (C'th) Security Industry Act 1997 (NSW) Cases Cited: Ahmed v Commissioner of Police [2017] NSWCATAD 73 Andriotis v Victorian Building Authority [2018] FCAFC 24 Independent Liquor and Gaming Authority v Auld [2018] NSWCATAP 68 Commissioner of Police v Mohamed [2009] NSWCA 432 Kocic v Commissioner of Police, NSW Police Force [2014] NSWCA 368 Naylor v Commissioner of Police [2014] NSWCATOD 43 Sydney Training Academy Pty Ltd v Commissioner of Police; Abughazaleh v Commissioner of Police [2017] NSWCATOD 176, t, Texts Cited: None Category: Procedural and other rulings Parties: 2017/00272199: Mohamed Khalaf (Applicant) Commissioner of Police, NSW Police Force (Respondent) 2017/00272214: Qld Protection Security Pty Ltd (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: Counsel: P Lange (Applicants) Solicitors: Aquila Lawyers (Applicants) Bartier Perry (Respondent) File Number(s): 2017/00272199; 2017/00272214 Publication restriction: None REASONS FOR DECISION Overview 1. The applicants have applied for the referral of a question of law in these proceedings to the Supreme Court pursuant to s 54(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). The Commissioner of Police, who is the respondent in the proceedings, opposes the application. 2. These are two administrative review proceedings brought by the applicants for the review of decisions revoking licences held by each of them under the Security Industry Act 1997 (NSW) (the SIA). 3. Until revoked, the applicant, Mr Khalaf, held an individual Operator Licence and a company controlled by him, the applicant, Qld Protection Security Pty Ltd, held a corporation Master Licence in relation to security activities regulated by the SIA. Under the individual licence, Mr Khalaf was licenced to perform the work of an unarmed security guard, a crowd controller and a security trainer. Under the Master Licence, the company was licenced to provide licenced persons to carry on security activities. 4. As appears below, the question of law as framed made express reference to the Mutual Recognition Act 1992 (C'th) (MRA) but not by the assertion of some right or entitlement under that Act. It did so because it was said by the applicants to be the source of a contention that the administrative decision maker should not treat a particular training activity in which Mr Khalaf was involved as adverse to him. 5. For the reasons set out below, the application for referral is refused. The referral power and the guiding principle 1. Section 54 of the NCAT Act, relevantly, provides: 54 References of questions of law to Supreme Court (1) The Tribunal (including when constituted as an Appeal Panel) may, of its own motion or at the request of a party, refer a question of law arising in the proceedings to the Supreme Court for the opinion of the Court. (2) The Tribunal may refer a question of law under this section only if the President has consented in writing to the question being referred. (3) The Supreme Court has jurisdiction to hear and determine any question of law referred to it under this section, but may decline to exercise that jurisdiction if it considers it appropriate to do so. (4) If a question of law arising in proceedings has been referred to the Supreme Court under this section, the Tribunal is not: (a) to give a decision in the proceedings to which the question is relevant while the reference is pending, or (b) to proceed in a manner, or make a decision, that is inconsistent with the opinion of the Supreme Court on the question. 1. Section 36 (1) and (2) of the NCAT provide: 36 Guiding principle to be applied to practice and procedure (1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The Tribunal must seek to give effect to the guiding principle when it: (a) exercises any power given to it by this Act or the procedural rules, or (b) interprets any provision of this Act or the procedural rules. …. Some background 1. The applicants were notified of the decisions the subject of these proceedings, and the grounds for those decisions, by notices sent on behalf of the respondent dated 15 May 2017. The applicants sought an internal review of those decisions and were informed of the outcome of that review, which was to affirm these decisions, by a written statement dated 5 July 2017. 2. The applicants then sought administrative review of the decisions by applications lodged in the Tribunal on 7 September 2017. Section 29 of the SIA confers a right to an administrative review by the Tribunal under the Administrative Decisions Review Act 1997 (NSW) (ADR). 3. Under the ADR review the Tribunal is to decide what is the correct and preferable decision based upon the material placed before it on the hearing of the application: s 63(1) of the ADR. The Tribunal is empowered to affirm, vary or set aside the decision under review: s 63(3). 4. Following the taking of various steps in these proceedings, including the lodging of s 58 documents, the determination of a stay application, the vacation of hearing dates on 15 and 16 February 2018 and on 2 and 3 May 2018, and the lodging by the respondent of a statement of issues, the applicants, by their solicitors, first raised an issue of referral of a question of law in a letter to the respondent's solicitors dated 8 June 2018. 5. The stay application was determined on 7 November 2017. The Tribunal decided to refuse the application for a stay of the decision revoking the company's licence. It also decided to refuse the application for a stay of the decision revoking Mr Khalaf's licence in so far as it concerned his licence to train staff. The Tribunal granted a stay of the decision concerning Mr Khalaf's individual licence to carry out the activity of an unarmed security guard and in respect of crowd control. 6. At the hearing of the application for referral, in addition to receiving oral submissions from Mr Lange, Counsel for the applicants, and from Mr Mattson, the respondent's solicitor, various documents setting out the arguments of the parties concerning the referral question were referred to, namely: 1. The above letter from the applicants' solicitors dated 8 June 2018. 2. A letter from the applicants' solicitors to the President of the Tribunal dated 21 June 2018. 3. A letter from the respondent's solicitors to the President of the Tribunal dated 3 July 2018. 1. After the hearing, in accordance with directions made, additional written submissions concerning one aspect of the application were supplied by the parties. The question of law sought to be referred 1. In the letter from the applicants' solicitors dated 21 June 2018 it was contended that it would be appropriate to refer to the Supreme Court a question along the following lines: In interpreting the requirement under s. 15(1)(a) Security Industry Act 1997 that a person be a fit and proper person to hold the class of licence sought, may the Commissioner take into account the fact that such person has provided training to a NSW resident, so that the NSW resident may obtain a professional qualification in another Australian State, which he can then use to carry out security activities in NSW under the principles of mutual recognition, as set out in the Mutual Recognition Act 1992 (C'th). 1. The whole of the letter dated 21 June 2018 assists to understand why the question is framed in this way, including, for instance, how it relates to a review of decisions to revoke the licences. 2. The letter stated as follows: The two applicants in proceedings, Mr Khalaf, and QLD Protection Security Pty. Ltd., were both holders of licenses conferred by virtue of the Security Industry Act 1997. Those licenses were revoked by the Commissioner on a number of bases. A principal basis, upon which the Commissioner relies, is the alleged provision by QLD Protection of training within NSW, to NSW residents, enabling those persons to obtain security qualifications in Queensland. Those qualifications could, in turn, be used in New South Wales. At the directions hearing on 14 June 2018, we suggested, on behalf of the applicants, that this would be an appropriate case for the Tribunal to refer, pursuant to s 54(1) Civil Administrative Tribunal Act 2013, a question of law to the Supreme Court, for the opinion of the Court. We now seek your written consent, as required by s 54(2) of the Act. In seeking your consent, we rely upon the following matters. The Commissioner has foreshadowed that he will, in due course, seek to rely upon two, earlier decisions of the Tribunal in Naylor v Commissioner of Police [2014] NSWCATOD 43, and Ahmed v Commissioner of Police [2017] NSWCATAD 73. In Naylor, the Tribunal held (at [84]) that it was not in the public interest for the licensee to "provide training courses for interstate security licenses to NSW residents: not for use interstate, but for the purpose of gaining a NSW security licence by mutual recognition." Notably, neither the decision in Naylor, nor that in Ahmed, considered the impact of the Mutual Recognition Act 1992 (Cth). In Sydney Training Academy Pty Ltd v Commissioner of Police; Abughazaleh v Commissioner of Police [2017] NSWCATOD 176, the Commissioner sought to rely also upon the decisions in Naylor and Ahmed. However (at [120]), Dr Lucy recognised that there is, on one view, an argument that "there is nothing wrong in obtaining a New South Wales license in this way". While the Senior Member did not make an express reference to the Constitution, it is clear that the reason why "there is nothing wrong" with such a training scheme is that the Security Industry Act 1997 must be construed in a way, which is consistent with the Commonwealth Mutual Recognition Act, since otherwise it falls foul of s 109 Constitution. This is a matter which has hitherto not been considered by the Tribunal, but is a matter of considerable importance. As was observed recently by the Full Court of the Federal Court in Andriotis v Victorian Building Authority [2018] FCAFC 24 at [26]: "The provisions of the Mutual Recognition Act have arisen for judicial consideration on a limited number of occasions. But those occasions have provided some clarification of the provisions of that Act which, it may be noted, are not without some difficulty of interpretation and application." It will be submitted, in due course on behalf of the applicants, that the decisions in Naylor and Ahmed fail to appreciate the significance of the Mutual Recognition scheme. The importance of the scheme was emphasised in the Second Reading Speech in relation to the Commonwealth act (see Parl Deb H of R 3 November 1992 p. 2433): "If someone is assessed to be good enough to practise a profession or occupation in one State or Territory, then they should be able to do so anywhere in Australia. … Local registration authorities will be required to accept the judgment of their interstate counterparts of a person's educational qualifications, experience, character or fitness to practice." Consequently, the Full Court held in Andriotis held (at [45]): "The legislative intent is nevertheless clear enough – if (for example) a tradesman has satisfied all of the "qualifications" and has accumulated such "experience" as befits him to carry on his trade in one State, he is thereby "entitled" to be registered elsewhere." Needless to say, the reasoning is not limited to tradesmen, but applies equally to persons licensed under Security Industry legislation. It will therefore be submitted on behalf of the applicants that the provision of training to an individual, for the obtaining of a recognised qualification in one State, cannot be regarded as disreputable, even if those qualifications might be used within this jurisdiction. Certainly, it could not be said that to do so would amount "an abuse of the principles underlying mutual recognition" (cf. Naylor at [84]). To do otherwise, would be to interpret the Security Industry Act 1997 in a way, which is inconsistent with the Mutual Recognition Act 1992 (Cth). Therefore, we will be contending on behalf of the applicants that s 109 Constitution (Cth) requires the Security Industry Act to be read down. In summary, the issue raised is one, which involves the interpretation of the Constitution. There is limited assistance available from other authorities, which have considering the complexities of the Mutual Recognition scheme. Moreover, the issue is of considerable importance to the interpretation of the Security Industry Act, as is evidenced by the fact that the issue reappears in the decisions of the Tribunal, albeit in the absence of any relevant discussion of the Mutual Recognition Act. Thus, we suggest it is appropriate that this issue be referred to the Supreme Court, in accordance with s 54(1) of the Act. In particular, we suggest it would be appropriate to refer a question along the following lines : [The question as referred to above was then set out] 1. As so put, the question sought to be referred raises a question as to the implications of provisions of the MRA (see below) and of s 109 of the Constitution to the making of a broad evaluative judgment as to the fitness and propriety of an individual – a judgment that is to be made, as will be seen below, based upon a range of facts and matters. 2. Importantly, as will be seen, a number of these facts and matters are quite separate from the circumstances referred to in the question for referral and these other facts and matters are relied upon by the respondent as stand-alone grounds for revocation. 3. I also note that the question is expressed in unspecific terms. It does not, for example, identify a question as to whether a specific provision or provisions of the MRA prevents the Commissioner from taking such a circumstance into account or a question as to the interpretation of any specific legislative provision(s). No reference is made in the question to s 109 of the Constitution. Rather, it seems to me that the question invites further articulation of one or more legal questions. Relevant statutory provisions - SIA 1. The reference in the question for referral to s 15(1)(a) of the SIA was relevant to the revocation of the licences because s 26(1A) of the SIA provides: 26 Revocation of licence …. (1A) The Commissioner must revoke a licence where the Commissioner is satisfied that, if the licensee were applying for a new licence, the application would be required by this Act to be refused. 1. That provision brought s 15(1)(a) which provides: 15 Restrictions on granting licence—general suitability criteria (1) The Commissioner must refuse to grant an application for a licence if the Commissioner is not satisfied that the applicant: (a) is a fit and proper person to hold the class of licence sought by the applicant, or …. 1. Other relevant provisions of the SIA are: 4 Carrying on a "security activity" (1) For the purposes of this Act, a person carries on a security activity if the person carries on any one or more of the following activities in the course of conducting a business or in the course of the person's employment: … (j) providing training or instruction in relation to any security activity referred to in this section,….. 7 Offence of carrying on unauthorised security activities (1) A person must not provide persons to carry on security activities unless: (a) the person is the holder of a master licence, and (b) the person provides no more persons on any one day than the number of persons authorised by the master licence. (c) (Repealed) Maximum penalty: (a) in the case of a corporation—1,000 penalty units, or (b) in the case of an individual—500 penalty units or imprisonment for 2 years, or both. (2) A person must not carry on a security activity (other than providing persons to carry on security activities) unless the person is the holder of a class 1 licence or class 2 licence that authorises the person to carry on the security activity. Maximum penalty: 500 penalty units or imprisonment for 2 years, or both. 15 Restrictions on granting licence—general suitability criteria (1) The Commissioner must refuse to grant an application for a licence if the Commissioner is not satisfied that the applicant: (a) is a fit and proper person to hold the class of licence sought by the applicant, or (b) is of or above the age of 18, or (c) has the competencies and experience approved by the Commissioner, or (d) has undertaken and completed the training, assessment and instruction that is approved for the class of licence sought by the applicant, or (e) is competent to carry on the security activity to which the proposed licence relates, or … (3) The Commissioner may refuse to grant an application for a licence if the Commissioner considers that the grant of the licence would be contrary to the public interest. (4) The regulations may provide additional mandatory or discretionary grounds for refusing the granting of an application for a licence. 21 Grant and conditions of licence and renewal of licence (1) The Commissioner may, after considering an application for the grant or renewal of a licence: (a) grant a licence to, or renew the licence of, the person making the application, or (b) refuse to grant a licence or to renew the licence. ... (3) A licence is subject: (a) to such conditions as may be imposed by the Commissioner (whether at the time the licence is granted or renewed or at any later time), and (b) to such other conditions as are imposed by this Act or prescribed by the regulations. 26 Revocation of licence (1) A licence may be revoked: (a) (Repealed) (b) if the licensee: (i) supplied information that was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence or the renewal of the licence, or (ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or (iii) contravenes any condition of the licence, or (c) (Repealed) (d) for any other reason prescribed by the regulations. (1A) The Commissioner must revoke a licence where the Commissioner is satisfied that, if the licensee were applying for a new licence, the application would be required by this Act to be refused. (2) The Commissioner may revoke a licence by serving on the licensee, personally or by post, a notice stating that the licence is revoked and the reasons for revoking it. … Relevant statutory provisions - MRA 1. The reference in the question for referral to the MRA appears to have in mind, at least, s 17of that Act. That section provides: 17 Entitlement to carry on occupation (1) The mutual recognition principle is that, subject to this Part, a person who is registered in the first State for an occupation is, by this Act, entitled after notifying the local registration authority of the second State for the equivalent occupation: (a) to be registered in the second State for the equivalent occupation; and (b) pending such registration, to carry on the equivalent occupation in the second State. (2) However, the mutual recognition principle is subject to the exception that it does not affect the operation of laws that regulate the manner of carrying on an occupation in the second State, so long as those laws: (a) apply equally to all persons carrying on or seeking to carry on the occupation under the law of the second State; and (b) are not based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation. 1. Other relevant provisions of the MRA appear to include: 3 Principal purpose The principal purpose of this Act is to enact legislation authorised by the Parliaments of States under paragraph (xxxvii) of section 51 of the Commonwealth Constitution, and requested by the legislatures of the Australian Capital Territory and the Northern Territory, for the purpose of promoting the goal of freedom of movement of goods and service providers in a national market in Australia. 4 Interpretation ….. occupation means an occupation, trade, profession or calling of any kind that may be carried on only by registered persons, where registration is wholly or partly dependent on the attainment or possession of some qualification (for example, training, education, examination, experience, character or being fit or proper), and includes a specialisation in any of the above in which registration may be granted. …. registration includes the licensing, approval, admission, certification (including by way of practising certificates), or any other form of authorisation, of a person required by or under legislation for carrying on an occupation. 5 Application of this Act to States (1) This Act applies to a State, but only while it is a participating jurisdiction. (2) Accordingly, a reference in this Act to a State is a reference to a State that is a participating jurisdiction. 6 Operation of this Act (1) Nothing in this Act affects the operation of any other law of the Commonwealth. (2) This Act does not limit the operation of a law of a State so far as it can operate concurrently with this Act. 16 Mutual recognition (1) The mutual recognition principle as applying to occupations is as set out in this Part. (2) This Part deals with the ability of a person who is registered in connection with an occupation in a State to carry on an equivalent occupation in another State. (3) In this Part, the first‑mentioned State is called the first State, and the other State is called the second State. 20 Entitlement to registration and continued registration (1) A person who lodges a notice under section 19 with a local registration authority of the second State is entitled to be registered in the equivalent occupation, as if the law of the second State that deals with registration expressly provided that registration in the first State is a sufficient ground of entitlement to registration. (2) The local registration authority may grant registration on that ground and may grant renewals of such registration. ….. 36 Residence or domicile Residence or domicile in a particular State is not to be a prerequisite for or a factor in entitlement to the grant, renewal or continuation of registration arising under this Part. ….. The applicants' submissions 1. I have already referred to the argument of the applicants set out in the letter to the President dated 21 June 2018. In oral submissions: 1. In dealing with the respondent's reliance upon the Tribunal's decision applying s 54(1) of the NCAT Act in Independent Liquor and Gaming Authority v Auld [2018] NSWCATAP 68 Mr Lange focussed upon the 8 principles set out in the Auld decision in paragraph 11(5). These were principles contended for by the appellant in that case (set out below). In applying these Mr Lange submitted that each of (5) (a), (c), (d), (e), (f) and (g) were applicable. 2. In relation to the principles in (5)(a) and (c), Mr Lange submitted that the question for referral raised a matter of general public importance, including the need to resolve the difference of view reflected in the decisions of the Tribunal in Naylor and Ahmed on the one hand and the remarks of Senior Member Lucy in Sydney Training on the other. Mr Lange submitted that the argument the applicants sought to raise applied to any vocational occupation. 3. In this connection, he also submitted that there would be a public benefit in having a Supreme Court decision on the application of the MRA in circumstances where the Tribunal was not exercising judicial power and was not, therefore, in a position to provide an authoritative decision on the question binding upon other parties, albeit that the Tribunal's view could be expected to have persuasive force. Added to this was that there was some difficulty in applying that legislation and there were very few decisions about its application. 4. As to the principle in 5(e) , Mr Lange submitted that the question was material because it arose from matters referred to in the respondent's statement of issues. Mr Lange accepted that whilst the question was material the case could be determined against the applicant on grounds that were unrelated to the question for referral. 5. As to the principle in 5(g), Mr Lange submitted that efficiency dictated that the question be resolved sooner rather than later and not, for example, to await the determination of the Tribunal and any appeal from such determination. 6. In dealing with the respondent's submission that there were no agreed or established facts associated with the question for referral, Mr Lange indicated that the facts set out in paragraphs 1 and 1.1 of the respondent's statement of issues were accepted facts, subject to final agreement about the precise figures set out in 1.1. These facts were as follows: 1. SFAE and Mr Khalaf (with Mr Khalaf being a security licence holder in NSW at the relevant time) were associated and or involved with the provision of training to NSW residents (including those otherwise ineligible to obtain a security licence in NSW) to obtain a Queensland security licence and then subsequently a NSW security licence under mutual recognition laws (thereby bypassing the rigours of the NSW system). 1.1 During the period between 23 November 2015 and 16 January 201, out of the approx 1471 security qualifications issued to NSW residents for the purpose of obtaining a Queensland security licence, approx 558 (or 38%) were qualifications issued by SFAE. 1. Mr Lange said that the applicants did not contend that the Tribunal did not have jurisdiction or power to consider and decide the question. 1. In further written submissions after the hearing the applicants' submitted: 1. The addition of an express power in s 54(3) of the Supreme Court to decline to exercise the jurisdiction to determine the question referred to it was a novelty. It was not replicated in other statutes establishing similar tribunals. 2. The applicants had not been able to discover any decision of the Supreme Court of New South Wales or the Court of Appeal in which content had been given to the new express power. 3. Comity between jurisdictions would ordinarily drive the Supreme Court to answer the question referred to it in the absence of compelling reasons why the question should not be answered. The respondent's submissions 1. In a letter from the respondent's solicitors to the President dated 3 July 2018 the respondent submitted that it was not appropriate to make the order for referral because: 1. The question of law asked was imprecise and misguided; 2. It was not apparent that the question was material to the proceedings; 3. The question may be considered to be more hypothetical than material; 4. There was no adequate factual matrix identified or necessary findings made or agreed against which the question of law could be determined; 5. It was possible the Supreme Court might decline to deal with the question referred; 6. The Applicants had elected to bring their proceedings in the Tribunal in the first instance and should be held to that election. 7. It would not facilitate the just, quick and cheap resolution of the proceedings to refer the question to the Supreme Court. 8. If the issue raised by the applicants arises the applicants could appeal to the Appeal Panel and subsequently to the Supreme Court. 1. In support of these points the respondent said that there were three grounds of revocation – first, that the applicants were not fit and proper persons to hold a licence; second, that it was not in the public interest that the applicants retain the licences; third, that Mr Khalaf had contravened a condition of his licence. It was submitted that the question of law only sought to deal with the first ground referred to leaving untouched the public interest and contravention of a condition grounds. 2. The respondent took issue with a premise upon which the application was made, namely, as set out in applicant's letter of 21 June 2018 letter: A principal basis, upon which the Commissioner relies, is the alleged provision by Qld Protection of training within NSW, to NSW residents, enabling those persons to obtain security qualifications in Queensland. Those qualifications could, in turn, be used in New South Wales. 1. As to this, the respondent submitted that it was not "Qld Protection" that provided the training but another company associated with Mr Khalaf, Safety and First Aid Education Pty Ltd (SFAE) and this was relevant to the breach of the condition of Mr Khalaf's licence. Further, it submitted that the conduct of Mr Khalaf and SFAE in providing the training was not the only or primary issue in the proceedings. Yet further, it submitted that the use of the word "alleged" suggested that Mr Khalaf did not admit the conduct referred. 2. The respondent (in the letter dated 3 July 2018) referred to the statement of issues it had filed and summarised the factual matters relied upon in addition to the provision of training as follows: 1. It was a condition of Mr Khalaf's licence that he could only conduct training, instruction and assessment on behalf of an approved registered training organisation (RTO). SFAE was not so approved and had had its status as an RTO cancelled by the Australia Skills Quality Authority (ASQA). 2. The dishonest provision of security qualifications where students were provided no training at all or not adequate training. 3. The dishonest provision of security qualifications where students undertook no assessment or proper assessment at all. 4. The receiving of payment for the provision of such qualifications. 5. Various non-compliances and questionable conduct as an RTO. 6. The engagement of unlicensed persons to conduct security training in NSW. 7. Association with people of questionable character and quality. 8. Making a false declaration to the Queensland Government in relation to another's application for a security licence. 9. Providing false information in order to mislead the Security Licensing and Enforcement Directorate (SLED ) 10. A lack of candour and frankness with the Tribunal. 11. A failure to cooperate with the Tribunal. 12. A failure to cooperate with SLED. 1. The applicants did not dispute that these were real issues in the proceedings. 2. The respondent (in the letter dated 3 July 2018) addressed the merit of the applicants' argument that the MRA precluded reliance on the conduct of the applicants' training NSW residents in order to obtain a Queensland licence. It submitted that the public interest ground for revocation permitted reliance upon a NSW licence holder, being aware of the rigours of the NSW regime, facilitating or providing NSW residents with the ability to avoid those rigours. The respondent characterised this conduct as "not becoming" of a NSW licensee. The respondent submitted that the MRA was not concerned with the mischief in this case of people seeking to avoid their home state regulation altogether. 3. On the back of this submission, the respondent submitted that the need to consider the interaction between the MRA and the SIA did not arise, or that it was not clear that it did so. In this regard, the respondent pointed out that the proceedings did not involve consideration of Mr Khalaf himself obtaining a licence by the application of the MRA. 4. In the letter dated 3 July 2018, and in oral submissions, the respondent emphasised that the respondent had defaulted twice in the provision of the evidence and submissions it relied upon and still had not provided this material. It submitted that this contributed to the absence of an agreed or established factual matrix for the consideration of the question sought to be referred. As to the importance of the latter, the respondent relied upon aspects of the decision of the NSW Court of Appeal in Commissioner of Police v Mohamed [2009] NSWCA 432. 5. The respondent also emphasised the significance of s 36(1) of the NCAT Act and that given the many factual issues which themselves may resolve the matter the referral would not facilitate the just, quick, and cheap resolution of the proceedings. 6. In oral submissions, Mr Mattson, indicated that he relied, principally, on the submissions made in the letter dated 3 July 2018. Mr Mattson also submitted that it was likely that the Supreme Court would decline to determine the question referred, particularly given that the question concerned itself only with the fit and proper ground and does not address the other two grounds of revocation. 7. In further written submissions made after the hearing, the respondent relied upon aspects of the decision of the NSW Court of Appeal in Kocic v Commissioner of Police, NSW Police Force [2014] NSWCA 368, including the following passages from the judgement of White JA (at [93] to [103]): 99 The procedure adopted in this case should not be encouraged. That is so for five reasons. First, however the preliminary issues are determined, the application to the Tribunal will not be resolved. The issues might also be academic. As Basten JA has observed (at [10] and [11]), the delegate for the Commissioner asserted that Mr Kocic had been convicted of other offences, including firearms offences in 2001. There was no argument before this Court, nor, it seems, before the Appeal Panel as to whether any of those other convictions were or were not spent. The argument rather proceeded on the basis that there were some spent convictions and the question was whether the Tribunal was entitled to have regard to any of them, or to the conduct which was the subject of any of them, for any, and if so, which, purpose. The spent convictions might play little or no role in the Tribunal's ultimate decision whatever the decision on the preliminary issues. 100 The second difficulty with the procedure adopted is that the issues have been framed too narrowly. The question of what use can be made of spent convictions might arise not only in relation to the application of s 11(3)(a) and s 11(7) of the Firearms Act. It might also arise in relation to the assessment of the genuineness of the stated reasons for which the firearms licence was sought (s 12(1) of the Firearms Act) and in relation to the exercise of the discretion under s 11(1). The decisions do not address those matters. 101 Thirdly, the parties did not agree on the consequence of the decision that the spent convictions, and the conduct underlying those convictions, could be had regard to under s 11(7) of the Firearms Act. Mr Kocic submitted that the public interest discretion under s 11(7) could only operate in areas to which the "character" ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal (Commissioner for Police v Toleaofa [1999] NSWADTAP 9 at [25]). The Commissioner contends that the public interest ground is not so limited. The Appeal Panel held that this was a question for the Tribunal to decide on remittal (at [38]). 102 Fourthly, the substantive hearing in the Tribunal has been delayed whilst the parties have debated preliminary issues. There remains the prospect that the party who is ultimately unsuccessful in the Tribunal may seek leave to appeal, or be entitled to appeal on a question of law, to the Appeal Panel of the Civil and Administrative Tribunal, with the possibility of yet further applications to this court. The course taken is not consistent with the quick, cheap and just resolution of the real issues in the proceedings. 103 Fifthly, it is undesirable that the issues raised by this case be determined in the abstract (Wickstead v Browne (1992) 30 NSWLR 1 at 5). 1. The respondent acknowledged that in Kocic the Court of Appeal did proceed to determine the appeal. Nevertheless, the respondent submitted : 10. The above reasoning applies [a reference to the above passages from the reasons of White JA] with equal force here: a. There are many other matters in issue in the proceedings (see pages 4 and 5 of our letter) that could determine the Applications adversely to the Applicants, meaning the referral of a discrete question of law is unnecessary. When the Supreme Court requests further material, like the internal review reasons, this problem will become obvious; b. It is far from clear that a determination of the proposed question of law will necessarily resolve the Applications to the Tribunal. If the Applicants succeed in the question, there are many other matters to be determined by the Tribunal. If the Applicants fail, there has been no guarantee the Applications will not continue before the Tribunal; c. In circumstances where there are many other matters in issue, "the [referral] is not consistent with the quick, cheap and just resolution of the real issues in the proceedings"; d. Absent any findings or proper factual matrix, the proposed question is being determined in the abstract (as was the concern of the Court of Appeal in Kocic). Consideration 1. It was uncontroversial that the discretion to refer a question of law under s 54 (1) of the NCAT Act was to be exercised in accordance with the guiding principle in s 36 (1) of the NCAT Act. 2. I am not persuaded that the order for referral to the Supreme Court should be made. 3. This is because of the following factors and the conclusions which follow as set out in paragraph 44: 1. However the question for referral is answered will not resolve the proceedings. If the applicants were to be successful in obtaining a ruling that the circumstances set out in the question cannot be taken into account there remains to be determined a range of other, unrelated issues in relation to whether the revocation decisions should be affirmed or set aside. So also, is the case if the applicants' are unsuccessful. 2. Following on from (1), the question for referral may well be academic in this case because of the apparent significance to the outcome of a range of unrelated issues to the question whether the revocation decisions should be affirmed or set aside. Having regard to the unrelated issues set out in the respondent's statement of issues and the respondent's submissions about those issues, I am unable to conclude that the matter raised by the question for referral will be the, or a primary issue between the parties. It is an issue in the proceedings but it may not be material to the outcome. It may well be that the Tribunal would decide the application on the basis that regardless of its conclusions concerning the question for referral other facts and matters are sufficient in themselves to result in the revocation decisions being affirmed, or it may decide that it is unnecessary to decide the question raised. 3. If the question for referral was answered adversely to the applicants', in addition to the need for the Tribunal to determine all the unrelated issues in the proceedings, the Tribunal would still need to determine the weight to be given to the circumstances referred to in the question in arriving at its evaluation of the fit and proper and public interest issues. 4. In view of the considerable range of issues that will remain unresolved after determination of the question, I am unable to even conclude that a separate determination of the question for referral would significantly shorten the hearing and determination of the Tribunal proceedings at first instance. 5. Given the circumstances referred to in (1), (2), (3) and (4), if the Supreme Court were to determine the question referred to it, there exists the prospect of very substantial delay in the resolution of the dispute whilst two sets of appeals are pursued - first, appeals from any determination by the Supreme Court of the question for referral. - second, there may be appeals pursued from the Tribunal's determination of the balance of the issues in the proceedings. 6. The imprecision in the framing of the question to which I referred in paragraph 20 above. 7. The question for referral is framed too narrowly because it does not address the public interest ground for revocation. 8. I am also concerned that the question for referral is framed too narrowly because it does not include any fact concerning Mr Khalaf's knowledge or intent in relation to the relevant training that he has been involved with – a factor that seems to be a part of what the respondent wishes to rely upon as expressed in the letter of 3 July 2018 but does not, or does not clearly, appear in the agreed facts (as set out in paragraphs 1 and 1.1 of the statement of issues) referred to above. 9. This last factor connects with another concern. The question for referral is fact dependent in the sense that the question is whether a stated set of factual circumstances can be taken into account. There is the potential for some variation in the relevant factual circumstances to occur as the case develops unless, by some means, the parties become conclusively bound to a particular factual position. That has not yet occurred. 1. In view of these factors, I do not think that referral of the question to the Supreme Court will facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 36(1) of the NCAT Act. In my opinion, the better course is for the case to proceed in the normal way, leading to reasons of the Tribunal with findings of fact and law which can then form the basis of a conventional consideration of the taking of any further steps before the matter is finally resolved. I should also say that in view of the factors in paragraph 43, in my opinion, there is a reasonable prospect that the Supreme Court would decline to determine the question with the consequence that more time and expense will have been wasted on the pursuit of this application. 2. I add the following in respect of the decision to refuse the application: 1. For the purposes of this application, I do not accept the respondent's submission that the question does not arise or is misguided because the MRA does not prevent consideration of the circumstances about training that the respondent has indicated it wishes to rely upon. I do not regard it as necessary or appropriate that, at this stage, I come to a view about the merits of this part of the dispute between the parties. 2. For the purposes of the application, I am prepared to accept that a court decision upon the applicants' contentions may well be of importance to aspects of the respondent's regulatory role under the SIA and to some existing or aspiring licence holders in addition to the applicants. However, in my opinion, this factor is not sufficient to override the considerable weight of the factors which are adverse to the application to which I have already referred. 3. I have had regard to the various case authorities to which I have been referred. It will be readily appreciated that I have given considerable weight to the views of White JA in Kocic. In doing so, I recognise that the question whether or not to refer is a discretionary decision which will very much turn on the facts and circumstances of each case. However, it does seem to me that the facts and circumstances in Kocic provided some analogy to those I have been considering. I also appreciate that the procedure by which the Court of Appeal came to deal with the matter in Kocic was through an appeal from an interlocutory decision of the Tribunal and not through a referral of a question of law. Nevertheless, I regard the passages from the judgment of White J as pertinent to the current application. 4. I have considered the decision of the Appeal Panel in the Auld case, particularly in view of the reliance placed upon it by the applicants. However, I note, firstly, as already mentioned, that what the applicants relied upon were the submissions as to the principles by the applicants in that case for referral. I recognise that the Appeal Panel concluded that these could readily be accepted. However, in doing so, it cautioned that it was unwise to universally define the factors which might be relevant to the proper exercise of the discretion under s 54(1): at [21]. 5. Finally, I do not regard the applicants as having made some election to pursue a decision by the Tribunal which prevents them from pursuing a referral of a question for decision by the Supreme Court. However, I do think that the application could have and ought to have been made at a much earlier stage of the proceedings. Order 1. For the above reasons, the Tribunal orders that 1. The Applications for referral of a question of law to the Supreme Court pursuant to s 54(1) of the NCAT Act be dismissed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 28 November 2018