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.
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.
As a consequence of those convictions the applicant faces a mandatory revocation of his security industry licence.
[2]
The application for dismissal
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.
In Choi 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 BDK 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 Alchin v Rail Corporation NSW [ 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, Keene 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 Rosser 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 Ballarto Pastoral Pty Ltd 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 Kyriakidis v State of Victoria (Human Rights List) [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).
In my opinion, because the SI Act requires that the applicant's security industry licence must be revoked, his application for administrative review of the decision to revoke his security industry 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.
[3]
Conclusion
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.
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 Md Ifitkhar Dewan's security industry licence is dismissed under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013, as it is lacking in substance and misconceived.
[4]
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
[5]
Amendments
16 January 2020 - Section references amended
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Decision last updated: 16 January 2020
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.
Section 16(1)(a) is concerned with criminal convictions which require that an application for a security industry 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:
(a) has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations in relation to the class of licence sought, whether or not the offence is an offence under New South Wales law, or
…
The offences prescribed for the purposes of s 16(1)(a) are to be found in clause 15(1) of the Security Industry Regulation 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.
If an applicant has been convicted of offences to which clause 15(1) of the SI Regulation applies, then the Commissioner must revoke his security industry 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 Feuerstein v Commissioner of Police, NSW Police [2007] NSWADT 114. It requires that a security industry licence be revoked when a holder is convicted of an offence to which s 15(1) applies.