Application for administrative review of security licence revocation dismissed

The Tribunal dismissed an application for administrative review of a decision to revoke a security licence, finding it lacking in substance and misconceived. The decision was based on the applicant's criminal convictions under the Crimes Act 1900 and the Crimes (Domestic and Personal Violence) Act 2007.

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: [NAME] v Commissioner of Police, NSW Police Force [2020] NSWCATOD 6 Hearing dates: On the papers Date of orders: 16 January 2020 Decision date: 16 January 2020 Jurisdiction: Occupational Division Before: [NAME], Senior Member Decision: (1) Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 the Tribunal dispenses with a hearing in this matter. (2) The application for administrative review of the decision to revoke [NAME]'s [NAME] licence is dismissed under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013, as it is lacking in substance and misconceived. Catchwords: ADMINISTRATIVE REVIEW – application for administrative review of decision to revoke a [NAME] licence issued under the [NAME] Act 1997 – revocation mandatory under s 26A of under the [NAME] Act 1997 – application in proceedings made for summary dismissal under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 – administrative review application dismissed as lacking in substance and misconceived Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Crimes (Domestic and Personal Violence) Act 2007 (NSW) Crimes Act 1900 (NSW) [NAME] Act 1997 (NSW) [NAME] 2016 (NSW) Cases Cited: Alchin v Rail Corporation NSW [2012] NSWADT 142 Attorney-General v Wentworth (1988) 14 NSWLR 481 [COMPANY] v Department of Primary Industries [2006] VCAT 478 [NAME] v Department of Education and Communities [2015] NSWCATAP 129 [NAME] v University of Technology Sydney [2019] NSWCATAD 176 [NAME] v Commissioner of Police, NSW Police [2007] NSWADT 114 The Owners – Strata Plan No. 92334 v Piety Capital Pty Ltd [2019] NSWCATCD 22 Category: Procedural and other rulings Parties: [NAME] (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: Solicitors: [redacted] [NAME] (Respondent) File Number(s): 2019/00260236 Publication restriction: Nil

REASONS FOR DECISION

Introduction 1. [NAME] (the applicant) was issued with a class 1AG security licence under the [NAME] Act 1997 (NSW) (the SI Act) on 6 January 2016.

2. On 21 April 2019 the applicant was charged before the [ADDRESS] with: 1. two counts of common assault contrary to s 61 of the Crimes Act 1900 (NSW); and 2. two counts of stalk or intimidate another person with the intention of causing fear of physical or mental harm, contrary to s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (the CDPV Act).

1. The applicant was found guilty and convicted of all charges. [ADDRESS] then made a two year conditional release order.

2. On 25 July 2017 the applicant's [NAME] licence was revoked by the Commissioner on the basis that he had been convicted of those offences. The notice of revocation explained that: 1. the offences for which he had been convicted would prevent him obtaining a SI Act licence if he were now to apply for one (s 16(1)(a)); and, 2. s 26A said that the Commissioner must revoke a licence if a fresh application for a licence by a licence holder would have to be refused.

1. On 30 July 2017 the applicant sought an internal review of that decision.

2. On 8 August 2019 an internal review affirmed the decision to revoke the applicant's [NAME] licence.

3. On 21 August 2019 the applicant applied to the Tribunal for administrative review of the decision to revoke the [NAME] licence.

4. At a directions hearing held on 29 October 2019 the Tribunal ordered:

1. Commissioner of Police is to give to the Tribunal and [NAME] an application for dismissal and material in support of that application on or before 01 November 2019. 2. [NAME] is to give to the Tribunal and Commissioner of Police any material on which he relies in reply, on or before 15 November 2019.

3. The case will be decided without the need for parties to be present.

1. On 30 October 2019 the Commissioner filed an application for dismissal of the application for administrative review under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act). That sub-section provides: (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances: (a) … (b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, … 1. The Commissioner has filed submissions in support of that application. Despite being given an opportunity to do so, the applicant has not filed any submissions in reply.

2. The application for dismissal has been referred to me to determine.

Materials considered 1. In considering the application for dismissal I have had regard to the following material: 1. from the applicant: [redacted]

2. Letter from the applicant addressed to the Presiding Magistrate and dated 3 June 2019; and 3. Character reference from [NAME] dated 3 June 2019. 1. from the Commissioner:

1. Application for dismissal filed 30 October 2019;

2. Dismissal application – Respondent's submissions;

3. Respondent's s 58 documents.

1. Section 50(2) to (4) of the NCAT Act provide: (2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. (3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first: (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. (4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.

1. In this case, having reviewed all the materials, I am satisfied that this is a matter that can be determined in the absence of the parties by considering the materials lodged by the parties. I therefore dispense with a hearing.

The SI Act 1. Section 26(1A) of the SI Act provides that: (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. Section 16(1)(a) is concerned with criminal convictions which require that an application for a [NAME] licence be refused. It provides: (1) The Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant: [redacted] … 1. The offences prescribed for the purposes of s 16(1)(a) are to be found in clause 15(1) of the [NAME] 2016 (NSW) (the SI Regulation). Relevantly, it provides: For the purposes of section 16 (1) (a) of the Act, the following offences are prescribed offences regardless of whether they are committed in New South Wales: … (c) Offences involving assault An offence under the law of any Australian or overseas jurisdiction involving assault of any description, being an offence in respect of which the penalty imposed includes any term of imprisonment (whether or not suspended), an intensive correction order, a community correction order, a conditional release order, a good behaviour bond, a community service order or a penalty of $200 or more. … (i) Offences involving stalking or intimidation An offence under the law of any Australian or overseas jurisdiction involving stalking or intimidation.

1. If an applicant has been convicted of offences to which clause 15(1) of the SI Regulation applies, then the Commissioner must revoke his [NAME] licence. This is so no matter how unblemished his previous record was, or how much he is esteemed by others. The legislation gives the Commissioner (and the Tribunal on review) no choice. It is mandatory: see [NAME] v Commissioner of Police, NSW Police [2007] NSWADT 114. It requires that a [NAME] licence be revoked when a holder is convicted of an offence to which s 15(1) applies.

The applicant's offences 1. On 21 April 2019 the applicant was convicted of two counts of common assault contrary to s 61 of the Crimes Act. This carries a maximum penalty of two years imprisonment. It is an offence to which s 15(1) of the SI Act applies.

2. He was also convicted of two counts of stalk or intimidate another person with the intention causing fear of physical or mental harm, contrary to s 13 of the CDPV Act. This carries a maximum penalty of five years imprisonment or 50 penalty units or both. It is an offence to which s 15(1) of the SI Act applies. I should add that, having read the fact sheets presented to the Court, it is clear that the applicant used physical threats and aggression to intimidate his victims in the pursuit of money.

3. As a consequence of those convictions the applicant faces a mandatory revocation of his [NAME] licence.

The application for dismissal 1. In those circumstances the Commissioner has applied for an order under s 55(1)(b) of the NCAT Act summarily dismissing the application for administrative review. The Commissioner argues that the application for administrative review lacks any legal foundation and will achieve nothing, other than a confirmation of the mandatory revocation. This, the Commissioner says, shows that the administrative review application is frivolous or vexatious or otherwise misconceived or lacking in substance, and should be dismissed.

2. In [NAME] v University of Technology Sydney [2019] NSWCATAD 176 at [37]-[39] I had occasion to consider the authorities relating to the meaning of the words "frivolous or vexatious or otherwise misconceived or lacking in substance" in s 55(1)(b) of the NCAT Act:

37. The words "frivolous, vexatious, misconceived or lacking in substance" are well recognised legal terms that can be found in a broad spectrum of statutes dealing with summary dismissal in a wide variety of forums. In each case, it is important that the legal and legislative context in which those proceedings arise be taken into consideration.

38. Examples of these were discussed [NAME] v Department of Education and Communities [2015] NSWCATAP 129 at [59-62] in the context of an appeal against a summary dismissal of anti-discrimination proceedings on the grounds that they were vexatious under s 55 (1)(b) of the CAT Act. The Appeal Panel wrote: 63 In [NAME] v [NAME] [ 2012] NSWADT 142 Judicial Member Wright SC (as he then was) examined the meaning of the predecessor provision to s 55(1)(b) - s 73(5)(g)(ii) of the Administrative Decisions Tribunal Act 1977. As to the meaning of 'misconceived' and 'lacking in substance', he said: 25 The expressions used in s 92(1)(a)(i) of the ADA, namely "misconceived" and "lacking in substance" are found not only in the ADA but also in s 73(5)(g) of the ADT Act and similar legislation in other states. With respect to a similar provision found in the Equal Opportunity Act 1984 (Vic), Ormiston JA in State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at [14] said: "misconceived" and "lacking in substance" have not, so far as I am aware, been used in this context before though each expression is commonly used by lawyers, the one connoting a misunderstanding of legal principle and the other connoting an untenable proposition of law or fact. If one may discern, in these provisions, an attempt to express the powers of tribunals in non-technical language, then "misconceived" would represent a claim which did "not disclose a cause of action" ..., whereas "lacking in substance" might be seen to represent a claim where the defendant could obtain summary judgment ... 26 This approach of construing "misconceived" as including a misunderstanding of legal principle and "lacking in substance" as encompassing an untenable proposition of fact or law has been applied by the Tribunal in many decisions including, for example, [NAME] v Director-General, Department of Justice and Attorney-General [2011] NSWADT 59 at [14], McDonald v Central Coast Community Legal Centre [2008] NSWADT 96 at [22] and Stanborough v Woolworths Ltd [2005] NSWADT 203 at [50]. 64 In the present case, the Tribunal referred to the frequently-cited explanation of this term by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491:

1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.

2. They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.

3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless. 65 It will be seen that Roden J's first category covers conduct that falls within the meaning of 'frivolous', while his third category embraces the kind of cases to which the expressions 'misconceived' and 'lacking in substance' are directed (or, in the case of the UCPR categories, cases not disclosing a reasonable cause of action). 66 In our view a reasonably broad connotation should be given to the meaning of the four categories of conduct identified by s 55(1)(b). The intent of the provision, as we see it, is to seek to give the Tribunal a broad power to deal with abuses of its processes, and for them to be interpreted and applied in a power which captures any kind of abuse of process, that can reasonably be seen to fall within their compass. While 'misconceived' and 'lacking in substance' may be seen as relatively specific terms, we think a flexible, purposive interpretation can be adopted in determining whether proceedings are 'frivolous' or 'vexatious', conscious always of the gravity for an applicant or plaintiff of summary dismissal of proceedings. 39 In The Owners – Strata Plan No. 92334 v Piety Capital Pty Ltd [2019] NSWCATCD 22 Principal Member [NAME] noted with respect to the word misconceived that: 33 The meaning of "misconceived" in an equivalent provision to s 55(1)(b): s 75(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998 has been considered in a number of cases by the Victorian Civil and Administrative Tribunal (VCAT). 34 For example, in [COMPANY] v Department of Primary Industries [2006] VCAT 478, VCAT stated at [32] that "misconceived" in the context of s 75(1)(a) means "obviously untenable or groundless .... or means that the applicant has brought an incorrect type of application". In [NAME] v State of Victoria ([NAME]) [2014] VCAT 1039 (21 August 2014), VCAT characterised as misconceived an application in which the complaint as articulated was not capable as a matter of law of enlivening VCAT's power to make the order sought. This conclusion was also reached in Keogh v Higgins (Civil Claims) [2014] VCAT 1256 (3 October 2014).

1. In my opinion, because the SI Act requires that the applicant's [NAME] licence must be revoked, his application for administrative review of the decision to revoke his [NAME] licence must fail. It is therefore lacking in substance and misconceived. No benefit can flow from allowing it to proceed: only detriment to both parties in terms of wasted time, effort and costs.

Conclusion 1. I will therefore order that the applicant's application for administrative review be dismissed on the ground that it is lacking in substance and misconceived.

2. The formal orders I make are:

1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 the Tribunal dispenses with a hearing in this matter.

2. The application for administrative review of the decision to revoke [NAME]'s [NAME] licence is dismissed under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013, as it is lacking in substance and misconceived.

********** 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

Amendments 16 January 2020 - Section references amended 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: 16 January 2020