AVILION GROUP PTY LTD v COMMISSIONER OF POLICE

CATCHWORDS: ADMINISTRATIVE LAW - administrative tribunals - Administrative Decisions Tribunal (NSW) - appeals against interlocutory decisions of the Tribunal - statutory requirements under Administrative Decisions Tribunal Act 1997 (NSW) as to the proper constitution of the Appeal Panel - an appeal against an interlocutory decision requires leave - leave can be given by one member - balance of the appeal against the interlocutory decision must be heard by three members - Administrative Decisions Tribunal Act 1997 (NSW) s24, s24A, s113

Administrative Decisions Tribunal Act 1997 (NSW) LEGISLATION CITED: Security Industry Act 1997 (NSW) Supreme Court Act 1970 (NSW)

CASES CITED: B & L Linings Pty Limited v Chief Commissioner of State Revenue [2008] NSWCA 187 Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456; 65 NSWLR 245

Avilion Group Pty Ltd (First Appellant) PARTIES: Aleksandra Stankovic (Second Appellant) Commissioner of Police, NSW (First Respondent) Administrative Decisions Tribunal (Second Respondent)

COUNSEL: A Bellanto QC, P Lowe (First & Second Appellants) V Hartstein (First & Second Respondents)

SOLICITORS: M Rumore (First & Second Appellants) I V Knight, Crown Solicitors Office (First & Second Respondents)

LOWER COURT JURISDICTION: Administrative Decisions Tribunal

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40106/2009

ALLSOP P GILES JA MACFARLAN JA

1 May 2009 AVILION GROUP PTY LTD v COMMISSIONER OF POLICE Judgment 1 ALLSOP P: This is an application for leave to appeal from the decision of the Administrative Decisions Tribunal (the "Tribunal") made by the President (O'Connor DCJ) to allow an appeal from a decision of a presidential judicial member (Magistrate Hennessy) and to set aside that latter decision. The application for leave to appeal was argued concurrently with the appeal. The application for leave and the appeal were expedited. The only issue ultimately pressed in argument by the applicant was whether the President, sitting alone as he did, had statutory authority to hear the appeal from Magistrate Hennessy. For the reasons which follow, in my view, he did not. In these circumstances I would grant leave to appeal, allow the appeal and set aside the orders made by the Tribunal on 11 March 2009, leaving in place the stay granted by Magistrate Hennessy on 16 January 2009. 2 In November 2005, the applicant, Avilion Group Pty Ltd ("Avilion"), was granted a master licence under the Security Industry Act 1997 (NSW). Ms Aleksandra Stankovic was nominated as licensee. 3 In December 2005, the Tribunal affirmed a decision of the defendant, the Commissioner of Police (the "Commissioner"), that had been made on 7 February 2005 to revoke the security industry licence of Mr Dione Blissett and the master security licence of Web Protection Australia Pty Ltd. 4 On 13 January 2009, the Commissioner served a notice of revocation of licence on Avilion on the ground that Mr Blissett was a close associate of the licensee, Ms Stankovic and was not a fit and proper person to be such a close associate. 5 On the following day, 14 January 2009, Avilion applied to the Tribunal for review of the Commissioner's revocation decision and for a stay of the revocation pending the review. 6 The stay application came before Magistrate Hennessy, a Deputy President of the Tribunal on 16 January 2009. After hearing the parties, her Honour made an order staying the revocation of Avilion's licence "pending further order of this Tribunal". Her Honour did not embark on any review of the Commissioner's revocation decision. The hearing of that review has been set down for early June 2009. 7 On 28 January 2009, the Commissioner sought leave to appeal to the Appeal Panel of the Tribunal under the Administrative Decisions Tribunal Act 1997 (NSW) (the "ADT Act"), s 113(2A) against the stay order made by Magistrate Hennessy. On 20, 26 and 27 February and 5 and 11 March 2009, that application was heard by the President of the Tribunal who gave his decision on 11 March 2009. The President granted leave to appeal, extended the appeal to a review on the merits of the appealable decision, allowed the appeal and set aside the stay. In that hearing, the President received evidence that was not put before Magistrate Hennessy. The President expressed the view in his reasons that there was no error of law revealed in the decision of Magistrate Hennessy. 8 On 17 March 2009, a summons was filed in the Administrative Law List of the Common Law Division of the Supreme Court. The proceeding came before Rothman J on 24 March 2009. His Honour recognised that by reason of the Supreme Court Act 1970 (NSW), s 48 the summons was properly to be heard in the Court of Appeal and removed the summons to this Court. Also, on the basis of undertakings to the Court set out below, Rothman J made orders which included one staying the order of the President made on 11 March, as follows: "The orders issued by the President of the Administrative Decisions Tribunal on 11 March 2009 in Commissioner of Police v Avilion Group Pty Limited, matter No 099003 be stayed until further order of the Court or determination of the application before the Administrative Decisions Tribunal, whichever occurs first." The undertakings to the Court were in the following terms: "The Court notes the undertaking given to the Court by Miss Stankovic, the second plaintiff, that Mr Blisset will not be involved in the running of the business of Avilion Group Pty Limited during the subsistence of these orders and notes the undertaking given by Mr Rumore, solicitor on the record, that the Registrar of the Court of Appeal will be approached within seven days both in relation to these stay orders and expedition." 9 By the ADT Act, s 119(1) a party to proceedings before an Appeal Panel may appeal to the Supreme Court, on a question of law, against any decision of the Appeal Panel. (As to the nature and limits of s 119(1), see B & L Linings Pty Limited v Chief Commissioner of State Revenue [2008] NSWCA 187.) By the ADT Act, s 119(1A), any appeal against an interlocutory decision of the Appeal Panel requires leave. The supervisory jurisdiction of the Court in the exercise of its original jurisdiction is, subject to the ADT Act, s 123, left unaffected by the ADT Act: see s 122. 10 Initially, Avilion sought to raise three questions of law for the purposes of s 119(1):

(a) whether President O'Connor, sitting alone, had statutory authority to go beyond the question of granting leave to appeal;

(b) whether there must be an arguable error of law in the appealable decision before the Appeal Panel can extend the appeal to a review of the merits of the appealable decision under the ADT Act, s 113(2)(b); and

(c) whether the Appeal Panel in hearing an appeal extended to a review of the merits of an appealable decision was entitled to rely upon evidence or material not before the primary decision-maker. 11 Question (b) was abandoned before argument in the light of the decision of this Court in Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456; 65 NSWLR 245 at 256-257 [60]-[64] per Tobias JA, with whom Spigelman CJ relevantly agreed at 249 [14]. 12 Question (c) was abandoned during argument on the basis that it was accepted that the terms of the ADT Act, s 115 and the notion of merits review clearly permit an otherwise properly constituted Appeal Panel to receive evidence or material that may not have been before the primary decision-maker. 13 This leaves question (a). 14 In B & L Linings at [15]-[35], I described the statutory structure of the ADT Act and, in particular, the role of the Tribunal, the Appeal Panel and the Court. I adopt, and do not repeat, what I there said. 15 Section 60 of the ADT Act provides for the status of decisions under review and for stays of their operation. This was the provision authorising Magistrate Hennessy to hear and determine the application for a stay. Section 60 is in the following terms:

"(1) Subject to this section, an application to the Tribunal for a review of a reviewable decision does not affect the operation of the decision under review or prevent the taking of action to implement that decision. (2) On the application of any party to proceedings for an application for a review of a reviewable decision, the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application. (3) The Tribunal may make an order under this section only if it considers that it is desirable to do so after taking into account: (a) the interests of any persons who may be affected by the determination of the application, and (b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and (c) the public interest. (4) While an order is in force under this section (including an order that has previously been varied on one or more occasions under this subsection), the Tribunal may, on application by a party to the proceedings, vary or revoke the order by another order." 16 The decision of the Commissioner to revoke Avilion's licence was a reviewable decision for the purposes of the ADT Act, ss 60, 4 and 8 by reason of the Security Industry Act, s 29(1)(c), which was in the following terms: "(1) A person may apply to the Administrative Decisions Tribunal for a review of the following decisions: …. (c) the revocation or suspension of a licence granted to the person." 17 The decision made by Magistrate Hennessy under the ADT Act, s 60 was an appealable decision for the purposes of the ADT Act, s 112(1)(b), which is in the following terms:

"(1) For the purposes of this Part, an appealable decision of the Tribunal is a decision of the Tribunal (or a decision that is taken to be a decision of the Tribunal) made in proceedings for: …. (b) a review of a reviewable decision." 18 The ADT Act, s 113 deals with appeals to the Appeal Panel from appealable decisions of the Tribunal, and is in the following terms: "(1) A party to proceedings in which an appealable decision of the Tribunal is made may appeal to the Tribunal constituted by an Appeal Panel. (2) An appeal under this Part: (a) may be made on any question of law, and (b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision. (2A) Despite subsections (1) and (2), an appeal does not lie to an Appeal Panel of the Tribunal against an interlocutory decision of the Tribunal except by leave of the Appeal Panel. (2B) For the purposes of determining whether to grant leave to appeal under subsection (2A), an Appeal Panel may be constituted by one presidential judicial member who is assigned by the President to make that determination. (2C) The provisions of subsection (2B): (a) have effect despite any other requirement of this Act or any other enactment relating to the constitution of an Appeal Panel for the exercise of its functions, and (b) do not prevent a differently constituted Appeal Panel from determining whether to grant leave to appeal under subsection (2A) if the Panel is duly constituted to exercise that function apart from subsection (2B). (3) An appeal under this Part must be made: (a) within 28 days after the Tribunal gives the party oral reasons or written reasons for the appealable decision (whichever is the later), or (b) within such further time as the Appeal Panel may allow. (4) An appeal under this Part is to be made in the manner prescribed by the rules of the Tribunal." 19 There is no doubt that the decision of Magistrate Hennessy to grant a stay was "an interlocutory decision of the Tribunal". The contrary was not argued, nor was it arguable. Leave to appeal was therefore required. The ADT Act, s 113(2B) is clear that one presidential judicial member could make that determination. Clearly, the President had authority to grant leave to appeal. 20 Section 113 is to be understood against the background of the balance of the ADT Act. Chapter 2, Part 3 (ss 19-26) deals with organisation of the Tribunal. Section 24 deals with the constitution of the Appeal Panel in relation to internal appeals. The decision of Magistrate Hennessy was an appealable decision of the Tribunal (for s 112) and an appeal against it (under s 113) was an internal appeal under Chapter 7, Part 1. This was so even though the jurisdiction of the Tribunal to review the revocation decision of the Commissioner was under the ADT Act, ss 36(1)(b) and 38(1) and the Security Industry Act, s 29(1). 21 Section 24 of the ADT Act is in the following terms: "(1) In exercising its functions in relation to an internal appeal, the Tribunal is to be constituted by an Appeal Panel consisting of at least 3 members assigned by the President to the Panel for the purpose of the proceedings. (2) An Appeal Panel constituted under this section must include: (a) 1 presidential judicial member (whether or not the member is a Division member of the Division in which the decision under appeal was made), and (b) 1 other judicial member who need not be a Division member of the Division in which the decision under appeal was made unless the presidential judicial member is not such a Division member, and (c) 1 non-judicial member who is such a Division member. (3) There may be more than one sitting of an Appeal Panel constituted under this section at the same time. (4) This section is subject to any contrary provision in this or any other Act." 22 At this point, one would read ss 24 and 113 together and conclude that the question of leave under s 113(2A) could be dealt with by one presidential judicial member by reason of s 113(2B), but that since leave had been granted all other questions on the appeal (including any extension beyond a question of law under s 113(2)(b)) would be dealt with by a three person Appeal Panel conformably with the requirements of s 24. 23 This is, indeed, Avilion's argument. The Commissioner seeks to defeat it by reliance on the terms of the ADT Act, s 24A, which are as follows: (1) In this section: interlocutory function means the making of any order or other decision by the Tribunal (including an Appeal Panel of the Tribunal) in proceedings in respect of any of the following: (a) stays or adjournments, (b) prohibition or restriction of the disclosure, broadcast or publication of matters by order under section 75, (c) summonses, (d) extensions of time for any matter (including for the lodgment of applications or appeals), (e) evidential matters, (f) disqualification of members, (g) joinder of parties to proceedings, (h) summary dismissal of proceedings, (i) any other interlocutory issue before the Tribunal.

(2) In exercising any of its interlocutory functions, the Tribunal may be constituted by: (a) in the case of a function of the Tribunal in relation to an internal appeal or external appeal - one presidential judicial member, or (b) in the case of a function of the Tribunal otherwise than in relation to an internal appeal or external appeal - one judicial member of the Division to which the function concerned is allocated. (2A) The President, or relevant Divisional Head (subject to any direction of the President), may give directions as to the members who are to constitute the Tribunal for the purposes of exercising any of its interlocutory functions. (3) Nothing in this section prevents a differently constituted Tribunal from exercising an interlocutory function or any other function of the Tribunal if the Tribunal is duly constituted to exercise that function apart from this section. (4) This section has effect despite any other requirement of this Act or any other enactment relating to the constitution of the Tribunal for the exercise of its functions." 24 The Commissioner argued that the appeal from Magistrate Hennessy was an appeal against an interlocutory decision (as it no doubt was) and so was an "interlocutory function" for the purposes of s 24A. To paraphrase s 24A, the Commissioner submitted that the order allowing the appeal and revoking the stay was an order in proceedings (being an order in the appeal), the proceedings being in respect of a stay, and thus falling within s 24A(1)(a). This submission rested on a reading of s 24A(1) which would have the words "in respect of any of the following" qualify the word "proceedings" (here meaning "(appeal) proceedings"). 25 If this were the correct reading, the terms of s 24A(1), in particular in the light of s 24A(1)(i), would mean that all appeal proceedings against interlocutory decisions would be able to be heard by one presidential judicial member or one judicial member under s 24A(2)(a) or (b), respectively. 26 That is not the proper reading of s 24A. The section is concerned with interlocutory orders or decisions in proceedings, including before an Appeal Panel. It is the order or decision (in the (appeal) proceedings) which is in respect of the subjects in (a) to (i). In those circumstances, the making of such collateral or interlocutory orders is dealt with by s 24A. So, here, if Magistrate Hennessy had refused a stay and an appeal had been lodged by Avilion, an order in respect of a stay against the refusal of the stay (pending the appeal being heard by three members by reason of s 24 under s 113) could be sought from one member under s 24A. 27 There are textual reasons for this as the preferable construction. First, s 24A(1)(i) tends to indicate that the subject matter is interlocutory issues before the Tribunal, here before the Appeal Panel. The kinds of interlocutory issues set out in (a) to (i) might arise in the Tribunal (including an Appeal Panel) with proceedings before it. The interlocutory function is the order or decision of the kind in (a) to (i) which might arise in any proceedings. Secondly, s 113(2B) would be otiose if s 24A(1), especially having regard to s 24A(1)(i), permitted all appeals against interlocutory decisions to be heard by one member. Thirdly, and related to the second reason, if the result for which the Commissioner contends be correct, Parliament has used a complex and opaque means to bring about a result which could have been simply expressed. 28 The structure and policy of the ADT Act also tends to militate against the Commissioner's construction. Though not organised in a strictly hierarchical fashion, it would be an odd construction if appeals against interlocutory decisions of one member could be dealt with by only one member and, by reason of the terms of s 24A(2), possibly a member of equal or lesser hierarchical status. 29 The construction propounded by Avilion retains symmetry and convenience:

(a) an appeal against an interlocutory decision requires leave: s 113(2A);

(b) that leave can be given by one member: s 113(2B);

(c) the balance of the appeal against the interlocutory decision must be heard by three members: s 24;

(d) however, if, in that appeal, there are orders or decisions in respect of any of the subjects in s 24A(1)(a) to (i), such interlocutory functions in the appeal proceedings before the Appeal Panel can be dealt with by one member in accordance with s 24A(2). 30 This, in my view, is the proper place of s 24A. It does not transform all appeals on interlocutory decisions into appeals that can be heard by one member. 31 For these reasons, the President had no statutory authority to deal with the appeal otherwise than by granting leave to appeal. In those circumstances this Court should grant leave to appeal, allow the appeal, set aside the decision of the Tribunal made on 11 March 2009 by the President other than any order granting leave to appeal. 32 Issues were raised by Avilion and abandoned. In my view, the Commissioner should pay three quarters of Avilion's costs of the application for leave to appeal and of the appeal. 33 There was no argument but that the consequences of these orders would be to leave in place the stay granted by Magistrate Hennessy. The conditional stay granted by Rothman J should cease to be operative on the making of orders by this Court. Also, the undertakings to the Court given at the time of Rothman J making orders should cease to be operative, though they were in full force and effect from the time of being given until the making of orders by this Court. 34 Therefore I would make the following orders:

(a) Grant leave to appeal from the decision of the Administrative Decisions Tribunal (President O'Connor) made on 11 March 2009.

(b) Order the applicants to file a notice of appeal within 7 days of these orders.

(d) Set aside the orders of the Administrative Decisions Tribunal (President O'Connor) made on 11 March 2009, save to the extent that such orders contained a grant of leave to appeal to the Appeal Panel.

(e) Order the respondent to pay three quarters of the appellants' costs of the application for leave to appeal and of the appeal.

(f) The effect of the preceding orders is to: (i) leave as operative the stay granted by the Administrative Decisions Tribunal (Magistrate Hennessy) on 16 January 2009; (ii) discharge as from the date of these orders (a) the stay granted by the Court (Rothman J) on 24 March 2009 and (b) the undertakings to the Court given on 24 March 2009, leaving, however, said undertakings effective and operative from 24 March 2009 to the date of these orders. 35 GILES JA: I agree with Allsop P. 36 MACFARLAN JA: I agree with Allsop P.

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