Avilion Group Pty Ltd v Commissioner of Police, NSW Police

Avilion Group Pty Ltd v Commissioner of Police, NSW Police - [2009] NSWSC 196 - NSWSC 2009 case summary — Zoe

[7]

The Legislation 7 Section 9 of the SIA provides for four classes of licences which authorise licence holders to undertake various security activities: master licences, class 1 and 2 licences, and provisional licences. Master licences are provided for by s 10. There are four categories of master licence, with each category having a prescribed number of licensed persons the master licensee can employ. In Avilion's case it holds a class MD licence which authorises it to employ more than 50 licensed people. 8 Applications for licences are made under s 14. Section 15 specifies general suitability criteria for licence applicants. Relevantly, it provides: (1) The Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant: (a) is not a fit and proper person to hold the class of licence sought by the applicant, or (b)... (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. (5) Except as provided by the regulations, a reference in this section to an applicant includes, in the case of an application for a master licence, a reference to each close associate of the applicant. (6) For the purpose of determining whether an applicant is a fit and proper person to hold the class of licence sought by the applicant, the Commissioner may have regard to any criminal intelligence report or other criminal information held in relation to the applicant that: (a) is relevant to the activities carried out under the class of licence sought by the applicant, or (b) causes the Commissioner to conclude that improper conduct is likely to occur if the applicant were granted the licence, or (c) causes the Commissioner not to have confidence that improper conduct will not occur if the applicant were granted the licence. (7) The Commissioner is not, under this or any other Act or law, required to give any reasons for not granting a licence if the giving of those reasons would disclose the existence or content of any criminal intelligence report or other criminal information as referred to in subsection (6).

[8]

9 Clause 16 provides: "(4) For the purposes of section 15(4) of the Act, the Commissioner must refuse to grant an application for a licence if the applicant is convicted of an offence under the Act but only if a total of at least 3 such offences arising out of different sets of circumstances have been committed by the applicant during any period of 2 years. (5) For the purposes of subclause (4), a person is taken to have committed an offence at the time that the person: (a) is convicted of the offence by a court, or (b) pays the penalty required by a penalty notice served on the person under section 45A of the Act in respect of the alleged offence (or if the person does not pay the penalty and does not elect to have the matter dealt with by a court, at the time that enforcement action is taken against the person under Division 3 or 4 of Part 4 of the Fines Act 1996 ). 10 The effect of s 15(5), which is modified by clause 17 of the Security Industry Regulation 2007 (the SIR), is that all references to an applicant in the section, as quoted, includes a close associate of the applicant. Close associate is defined in s 5: "(1) For the purposes of this Act, a person is a close associate of an applicant for, or the holder of, a licence if the person: (a) holds or will hold any relevant financial interest, or is or will be entitled to exercise any relevant power (whether in his or her own right or on behalf of any other person), in the business of the licence applicant or holder, and by virtue of that interest or power is or will be able (in the opinion of the Commissioner) to exercise a significant influence over or with respect to the conduct of that business, or (b) holds or will hold any relevant position, whether in his or her own right or on behalf of any other person, in the business of the licence applicant or holder. (2) In this section: relevant financial interest in relation to a business means: (a) any share in the capital of the business, or (b) any entitlement to receive any income derived from the business, whether the entitlement arises at law or in equity or otherwise. relevant position means the position of director, manager, and other executive positions and secretary, however those positions are designated, and such other positions as may be prescribed by the regulations for the purposes of this definition. relevant power means any power, whether exercisable by voting or otherwise and whether exercisable alone or in association with others: (a) to participate in any directorial, managerial or executive decision, or (b) to elect or appoint any person to any relevant position."

[25]

27 Avilion commenced business operating out of the same premises in Liverpool as Web Protection had operated from. Ms Stankovic commenced operations with the assistance of Mr Blissett. In cross-examination Ms Stankovic gave the following evidence with respect to Mr Blissett's role. A. Like I said, he was just assisting me to help me on my feet and that was about it. So just in basic administration roles. Q. Well what did that involve? A. Answering telephone calls. Picking-up cheques if necessary. Running errands. That sort of stuff. Q. Did you have any other staff at the time when you started? A. When I first commenced, no. Q. Just you and he, was it? A. Yes. Q. Who was the person who, at the beginning, dealt with the venue operators? A. Well like I said, I dealt with them on some occasions and then he obviously would have dealt with them on others. Q. When I say dealt with, I mean who was the person who would go out and meet with the people at the venues, when you first commenced? A. He would have. Q. So if there were any operational problems that the venues had, they would speak to Mr Blissett about that? A. Or they'd phone through and speak to me. Q. You were working what hours? A. Nine to five. Q. He was working what hours? A. I'm not certain - nights. Q. As necessary? A. Yeah. Q. So part of his role was to do the rostering? A. Yes. Q. That is to allocate particular security guards to particular venues? A. When we first commenced, yes, and then I ended up getting the relevant people and I include the relevant people, operations staff, to ensure that they took over. Q. That would have involved - that is, he's doing the rosters and so forth would have involved attending at the venues? A. I suppose so. Q. Well what do you mean, you suppose so? You're the company director aren't you? A. Well yes, I am but I worked from 9 to 5 so anything after 5 o'clock was--. Q. Dion did? A. Well, I suppose so, yes, yep. Q. At the beginning of the business, you say - or do you say you were still not in a relationship with him - personal? A. Yes. Q. So roughly around 5 or so you would leave the office and go home? A. Yes. Q. You were not living with him at the time? A. No. I think even on my application form, it's got ... which was where I lived with my parents. Q. And you basically left him to deal with anything that occurred outside the hours that you were not in the office? A. Yes. Q. So if there were problems with security guards at any particular venue then that was the sort of thing that he dealt with? A. Yes. Like I said, initially to start off with, he was assisting in administration until I found the appropriate people and then they took over. Q. And when you say assisting in administration, you mean dealing with the security guards? A. Yes, and I dealt with them too. Q. Certainly these things were included in his tasks to speak with security guards about any problems? A. Yes or they'd call the office. Q. If there was a problem at 11 o'clock at night or 2 o'clock in the morning, they wouldn't be calling the office would they? A. No, they wouldn't. Q. They'd talk to Dion about it, wouldn't they? Q. And if a security guard had been rostered by Dion to attend a particular venue and they hadn't shown up or they were sick or something, then they would call Dion, correct? A. The venue? Q. Yeah? A. Yes. Q. At the beginning of the business, the period I've just been asking you about, Dion was on the books as an employee? A. Yes, I believe so.

[35]

37 Ms Stankovic agreed it is Mr Blissett's number. She said that she had not updated the web-site. The following exchange then took place: "Q. But it appears from those documents that he was being put forward as the person to contact for those purposes doesn't it? A. Well that's just a general number that we use on there and that's what it states but it doesn't necessarily mean that that's what he takes care of. Q. So you'd agree though that the public face of the company, as represented on that website, only quotes that number as the contact person for quotes and assessments? A. Yes but there is our contact details on there as well, which is the office number. Q. So you still maintain do you that Mr Blissett was never in the role of giving quotes and assessments? A. Yes that's correct I think there's even points on there that states that we do shopping centres which we do not, so we're obviously just trying to market ourselves and get ourselves out there, so I mean, I don't know if it's a crime to put down that you do things when you don't, obviously we don't do shopping centres but we've put it out there, that's something that we'd like to do but trying to market ourselves. Q. But Mr Blissett used to go out to the venues and represent the companies at the venues didn't he? A. As an RSA marshal? Q. No as a representative of the security company? A. No that's not true. Q. Well you gave some evidence on 27 February 2009, page 41 of the transcript of that day and I'll read to you the evidence that you gave, commencing at line 15, this is about Mr Blissett, "Q. So he's an employee of yours and you actually don't know what he was doing? A. Well I don't keep a track of everything that everyone does. I really do have a lot of things that I need to do and make sure I comply with by, so it's a little bit difficult to keep track of each and every individual. Q. But he was representing your company at venues, do you agree with that? A. Yes he did go out of the office, yes, that's correct. Q. But was he going out representing your company, you have to be very clear on this. A. Representing the company in what way? Q. With venues, contract negotiations, security guards. A. He used to go out to the venues, yes." Right? That's the evidence you gave back in February, I'd suggest that the effect of that evidence was that Mr Blissett used to go out and represent the companies at venues, would you agree? A. Yes but in an RSA role, an RSA marshal role sorry. Q. Well you made no mention of RSA marshal role in that answer did you? A. Well your question was broad so I gave a broad answer."

[45]

47 There is other material before the Tribunal which the Commissioner says goes to demonstrates Mr Blissett's ongoing involvement in Avilion's business activities, including involvement after November 2008. Much of it is contained in disclosed criminal information (principally intelligence reports) which record hearsay information garnered by Police from contacts and informers, concerning Mr Blissett's involvement. That information is hearsay in nature. Aside from Mr Fullilove, the police officers who recorded those reports were not called to give evidence and were not available for cross-examination. Mr Lowe who appeared for Avilion submitted that as such their reports should be given little weight. He also submitted that much of the disclosed criminal information was self-corroborating, in the sense that the descriptions of Mr Blissett's role and associates contained in them, were based on previous intelligence reports. These, in turn, were based on unattributed hearsay, speculation and suspicion; and the author's were not available to have their evidence and opinions tested. I agree with this analysis with respect to a significant proportion, but not all, of the criminal information disclosed by the Commissioner. While replete with worrying accusations about Mr Blissett, speculation and suspicion, much of what they contain is unsubstantiated hearsay. I also agree that much of the material is self-corroborating; with the result that, when one considers the weight of the underlying evidence, the whole house of cards collapses. This, in my view, is not evidence upon which the Tribunal could be satisfied to the Briginshaw standard. In that case Dixon CJ said: "… reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences."

[60]

63 Following that audit Mr Fullilove served a notice to produce documents on Avilion by fax on 29 October 2008. The documents were produced the next day, at what Mr Fullilove described as an informal meeting at Kings Cross Police Station. Present were Mr Fullilove, Ms Stankovic, Mr Blissett and one other police officer. Mr Fullilove said that Mr Blissett handed him documents on behalf of Ms Stankovic. Following the meeting Mr Fullilove completed COPS Event E 35311227. It recorded the following information: "At 4.00pm on the afternoon of Thursday 30th October 2008, STANKOVIC and BLISSET attended Kings Cross Police Station to meet with Police, and produce the above listed documents. STANKOVIC was able to produce most of the records requested by Police, as documented in Official Police Notebook F444269, pg 18-21. Upon analyzing the records, Police noted that all UVP staff had varying amounts of money paid to them and taxed accordingly. Upon questioning some of these payments and comparing them to the amount of hours performed by individual guards, BLISSET acknowledged that he has initiated a system where he pays all his 150 or so security guards 50%of their wages through legitimate means to ensure they are covered by Workers Compensation. BLISSET further stated that the additional 50% of wages is paid cash in hand, and not declared to the Australian Taxation Office. This process is aimed at allowing United Venue Protection to charge a lower rate compared to other security companies in the area. In relation to BLISSET's employment, Police sighted payment records relating to income he has generated from United Venue Protection from the period 1st July 2007 to 26th October 200E. Police noted that BLISSET is paid a set wage of $720 a week, minus $24.22 child support and $95 tax, and is listed as a casual employee. When questioned in relation to his actual role with the company, BLISSET stated that he just assisted STANKOVIC with 'administration'. It should be noted that throughout this audit process, BLISSET was the primary source of information to Police in relation to all aspects of the business. BLISSET had a thorough knowledge of relevant security policies and procedures, relevant contracts, payments details, rostering details etc. It was evident to Police that BLISSET does continue to maintain a controlling influence over STANKOVIC and United Venue Protection as a whole. Police requested both STANKOVIC and BLISSET be interviewed at this point in relation to various Security Industry Act offences. Both STANKOVIC and BLISSET refused this process at this time pending legal advice. It is anticipated that these interview processes may be able to be conducted in the near future.

[105]

119 In FD v Commissioner of Police, New South Wales Police [2008] NSWADT 88 at [46-54] I wrote: "The discretion vested in a decision maker in determining whether a person is fit and proper, in any given context, was said by the Full Court of the Federal Court in Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589 at 389, per Northrop, Miles and French JJ, to "give wide scope for judgement and allow broad bases for rejection." See also Commissioner of Police v Toleafoa ([1999] NSWADTAP 9 at [25]. In the present context, additionally to these principles, s.15(6) of the SIA provides that "for the purpose of determining whether the Applicant is a fir and proper person" the Commissioner may have regard to criminal intelligence or information which, among other things, "causes the Commissioner not to have confidence that improper conduct will not occur if the applicant were granted the licence." The Act contains no definition of "improper conduct". Section 33 of the Interpretation Act 1987 ("the IA") says that: "In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object." S.34 of the IA then provides: "(1) In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material: (a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or (b) to determine the meaning of the provision: (i) if the provision is ambiguous or obscure, or (ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable." … The Macquarie Dictionary contains the following definition of "improper" - "not in accordance with propriety of behaviour, manners, etc .: improper conduct. " On that understanding, the improper conduct to which s.15(6) refers is conduct in the course of the regulated activity or as a consequence of the grant of a licence. In FD's case, were he granted a licence, this would be as an unarmed guard of persons or property, or in crowd control. The purpose and object of the Act appear to be the maintenance of the highest standards of personal integrity and conduct in the carrying out of regulated security activities. What amounts to prospective improper conduct (having regard to criminal intelligence) in the context of such a licence, which the Commissioner is not confident will not occur, is a difficult question. Some guidance can be found from the Second Respondent Speech on the Security Industry Amendment Act 2002 - which, among other things, introduced s.15(6) and (7) to the SIA. Mr Gaudry, Parliamentary Secretary, in the Legislative Assembly on 12 November 2002, said: "The intention of the Security Industry Act is to ensure that high standards of integrity and conduct are maintained within the security industry. Entry to the industry is restricted by the licensing system in order to protect the public interest by diminishing the likelihood of criminal activity within the industry. For this reason, persons convicted of specified offences are barred from working in security.

[118]

126Penalty notices are issued under s 45A of the Act. It provides: "(1) An authorised officer may serve a penalty notice on a person if it appears to the officer that the person has committed an offence against this Act or the regulations, being an offence prescribed by the regulations as a penalty notice offence. (2) A penalty notice is a notice to the effect that, if the person served does not wish to have the matter determined by a court, the person can pay, within the time and to the person specified in the notice, the amount of the penalty prescribed by the regulations for the offence if dealt with under this section. (3) A penalty notice may be served personally or by post. (4) If the amount of penalty prescribed for an alleged offence is paid under this section, no person is liable to any further proceedings for the alleged offence. (5) Payment under this section is not to be regarded as an admission of liability for the purpose of, and does not in any way affect or prejudice, any civil claim, action or proceeding arising out of the same occurrence. (6) The regulations may: (a) prescribe an offence for the purposes of this section by specifying the offence or by referring to the provision creating the offence, and (b) prescribe the amount of penalty payable for the offence if dealt with under this section, and (c) prescribe different amounts of penalties for different offences or classes of offences. (7) The amount of a penalty prescribed under this section for an offence is not to exceed the maximum amount of penalty that could be imposed for the offence by a court. (8) This section does not limit the operation of any other provision of, or made under, this or any other Act relating to proceedings that may be taken in respect of offences. (9) In this section, authorised officer means any of the following persons authorised in writing by the Commissioner as an authorised officer for the purposes of this section: (a) a police officer or any other member of the NSW Police Force, (b) a member of staff of a Department within the meaning of the Public Sector Employment and Management Act 2002 , (c) any other person prescribed by the regulations.

[120]

128Mr Single referred to seventeen penalty notices issued in the period 10 April 2008 to 15 May 2009 and gave evidence with respect to their status. In summary that evidence was that: A - Penalty Notice 4018554623 was issued to Avilion on 10 April 2008 in the sum of $2,200.00 for employing an unlicensed person for a security activity. This fine was paid on 6 June 2008. B - Penalty Notice 4012731398 was issued to Ms Stankovic on 12 September 2008 in the sum of $2,200.00 for permitting a provisional licence holder to carry on an unsupervised security activity. This fine was paid on 1 October 2008. C - Penalty Notice 4109089196 was issued to Ms Stankovic on 10 December 2008 in the sum of $1,100 for permitting a provisional licence holder to carry on an unsupervised security activity. This fine was paid on 27 January 2009. D - Penalty Notice 4021485977 was issued to Ms Stankovic on 5 February 2009 in the sum of $2,200.00 for employing an unlicensed person for a security activity. No payment or Court election was received by the due date, and an enforcement order (EO 280144016) was issued on 24 April 2009. On 7 May 2009 a court election notice was received. This was rejected as out of time. On12 June 2009 Ms Stankovic was advised of this by letter. On 24 June 2009 Ms Stankovic driver's licence was suspended due to non-payment of the fine. A property seizure order issued on 9 September 2009 was not satisfied. On 5 December 2009 Ms Stankovic's driver's licence suspension was lifted after she paid the outstanding fine. An application for annulment of the enforcement order was received on 8 December 2009 E - Penalty Notice 402489111 was issued to Avilion on 25 January 2009 in the sum of $2,200 for permitting a provisional licence holder to carry on an unsupervised security activity. No payment or Court election was received by the due date, and an enforcement order (EO 208322829) was issued on 4 May 2009. On 8 May 2009 a court election notice was received. This was rejected as out of time. On12 June 2009 Ms Stankovic was advised of this by letter. F - Penalty Notice 4023077026 was issued to Avilion on 22 May 2009 in the sum of $2,200 for employing an unlicensed person for a security activity. No payment or Court election was received by the due date, and an enforcement order (EO 283729212) was issued on 10 August 2009. On 2 December 2009 an annulment application for the enforcement order was received. This was declined. G - Penalty Notice 4023077035 was issued to Avilion on 22 May 2009 in the sum of $2,200 for employing an unlicensed person for a security activity. No payment or Court election was received by the due date, and an enforcement order (EO 283729212) was issued on 10 August 2009. On 2 December 2009 an annulment application for the enforcement order was received. This was declined. H - Penalty Notice 4022942139 was issued to UVP on 19 May 2009 in the sum of $2,200 for employing an unlicensed person for a security activity. No payment or Court election was received by the due date, and an enforcement order (EO 283666465) was issued on 5 August 2009. I - Penalty Notice 4023077044 was issued to Avilion on 22 May 2009 in the sum of $2,200 for employing an unlicensed person for a security activity. No payment or Court election was received by the due date, and an enforcement order (EO 283729212) was issued on 10 August 2009. On 2 December 2009 an annulment application for the enforcement order was received. This was declined. J - Penalty Notice 4020879244 was issued to Avilion on 24 February 2009 in the sum of $2,200 for permitting a provisional licence holder to carry on an unsupervised security activity. A court election notice was received on 8 May 2009 from Ms Stankovic. On 22 May 2009 the SDRO wrote to her requesting that she supply a public document from Avilion demonstrating her authority to act on behalf of the company, and giving her 21 days to do so. No further correspondence was received. An enforcement order (EO 282270735) was issued on 29 June 2009. K - Penalty Notice 4020879253 was issued to Avilion on 24 February 2009 in the sum of $2,200 for permitting a provisional licence holder to carry on an unsupervised security activity. A court election notice was received on 8 May 2009 from Ms Stankovic. On 22 May 2009 the SDRO wrote to her requesting that she supply a public document from Avilion demonstrating her authority to act on behalf of the company, and giving her 21 days to do so. No further correspondence was received. An enforcement order (EO 282270735) was issued on 29 June 2009. All fleet registrations of motor vehicles for Avilion have been cancelled as a result of this non-payment and Avilion has been prevented for registering new vehicles. L - Penalty Notice 4023077053 was issued to Avilion on 22 May 2009 in the sum of $2,200 for employing an unlicensed person for a security activity. No payment or Court election was received by the due date, and an enforcement order (EO 283729212) was issued on 10 August 2009. On 2 December 2009 an annulment application for the enforcement order was received. This was declined. M - Penalty Notice 4023077062 was issued to Avilion on 22 May 2009 in the sum of $2,200 for employing an unlicensed person for a security activity. No payment or Court election was received by the due date, and an enforcement order (EO 283729212) was issued on 10 August 2009. On 2 December 2009 an annulment application for the enforcement order was received. This was declined. N - Penalty Notice 4020879354 was issued to Avilion on 19 March 2009 in the sum of $2,200 for permitting a provisional licence holder to carry on an unsupervised security activity. A court election notice was received on 7 May 2009 from Ms Stankovic. On 9 June 2009 the SDRO wrote to her requesting that she supply a public document from Avilion demonstrating her authority to act on behalf of the company, and giving her 21 days to do so. No further correspondence was received. An enforcement order (EO 283089529) was issued on 15 July 2009. O - Penalty Notice 4022502624 was issued to Avilion issued to Avilion on 17 April 2009 in the sum of $2,200 for permitting a provisional licence holder to carry on an unsupervised security activity. A court election notice was received on 7 May 2009 from Ms Stankovic. On 9 June 2009 the SDRO wrote to her requesting that she supply a public document from Avilion demonstrating her authority to act on behalf of the company, and giving her 21 days to do so. No further correspondence was received. An enforcement order (EO 283422249) was issued on 24 July 2009. On 4 December 2009 an annulment application for the enforcement order was received. This was declined P - Penalty Notice 4019795001 was issued to Ms Stankovic on 25 April 2009 in the sum of $2,200 for employing an unlicensed person for a security activity. No payment or Court election was received by the due date, and an enforcement order (EO 283328910) was issued on 21 July 2009. This was paid in full on 3 December 2009. An application for annulment of the enforcement order was received on 8 December 2009 Q - P enalty Notice 4022502651 was issued to Avilion on 15 May 2009 in the sum of $2,200 for employing an unlicensed person for a security activity. No payment or Court election was received by the due date, and an enforcement order (EO 283616163) was issued on 4 August 2009. On 8 December 2009 an annulment application for the enforcement order was received. This was declined.

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Judgment (144 paragraphs)

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Cases Cited (16)