Ekila v Commissioner of Police, NSW Police Force [2020] NSWCATAP 56 | Case summary

NCAT Appeal Panel|2020-03-06|Before: Armstrong J

Introduction

This appeal was lodged on 24 October 2019 and is an appeal from a decision made in the Occupational Division of the Tribunal published on 30 September 2019. We will refer to the decision under appeal as the "Decision".
As stated in the Decision the Appellant had applied to the Tribunal for review of the decision made on 3 October 2018 on an internal review to affirm the decision under the Security Industry Act 1997 (NSW) (the SI Act) to revoke the Class 1AC security licence held by him.
The Tribunal has jurisdiction under s 29 (1)(c) of the SI Act to review, under the Administrative Decisions Review Act 1997 (NSW) (the ADR Act), a decision to revoke a security licence. The Tribunal's role at first instance is to decide whether, having regard to material before it on the review and the applicable law, the correct and preferable decision is to revoke the security licence held by the Appellant: see s 63, ADR Act.
As the Decision records, the Tribunal concluded that the decision to revoke the security licence held by the Appellant was the correct and preferable decision and made an order to the effect that the decision under review is affirmed.

Summary of the Decision

To assist in the understanding of this decision it is necessary to summarise the reasoning of the Tribunal recorded in the Decision, which we do as follows: 1. On 23 November 2016 the Appellant was granted registration of a Class 1AC security licence. The licence was renewed by application made on 25 November 2017 and was due to expire on 3 January 2019 (Decision at [4]). 2. The decision to revoke the security licence was based on a finding that the Appellant was not a fit and proper person to hold a security licence and that it would not be in the public interest for him to continue to hold such licence. The basis for those two findings was that on 22 August 2018 the Appellant had been convicted in the Local Court on two charges described as "responsible person/custodian not disclose driver's details", and had been fined $500 for each matter (Decision at [5]). 3. The background leading to the proceedings brought against the Appellant in the Local Court arose out of the use of a motorcycle which was involved in two pursuits with the police on 1 and 2 April 2018. The Appellant was the registered owner of the motorcycle. Both pursuits were terminated due to concerns for public safety. On 7 April 2018 the Appellant met with police and was asked for the name and residential address of the person riding the motorcycle on those two occasions. The Appellant informed the police that he had lent the motorcycle to a person called Omar and that he had no other information about Omar. Charges were brought against him under the Road Transport Act 2013 (NSW) based upon his alleged failure to provide the full name and residential address of the person who had control of the motorcycle at the relevant times (Decision at [6]). 4. The Decision summarises the transcript of proceedings in the Local Court. The Magistrate did not accept the Appellant's explanation as to why he had not told police who the rider of the motorcycle was and stated that, in her Honour's opinion, the Appellant knew the identity of the rider (Decision at [7]). 5. The Decision included extracts of the SI Act and the Security Industry Regulation 2016 (NSW) (the SI Regulation). Section 26 of the SI Act provides that 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 the SI Act to be refused. Section 15(1)(a) of the SI Act provides that the Commissioner must refuse an application for a security licence if the Commissioner is not satisfied that the applicant is a "fit and proper person to hold the class of licence sought by the applicant" (Decision at [8]-[9]). 6. Clause 25 of the SI Regulation provides an additional reason for revocation of a security licence. In summary it provides that a licence may be revoked if the Commissioner considers that it would be contrary to the public interest for the person to whom it is granted to continue to hold it. Clause 25 provides that, for the purpose of determining whether it would be contrary to the public interest for a person to continue to hold a licence, the Commissioner may have regard to any criminal intelligence report or other criminal information held in relation to that person that is relevant to the activities carried on under the class of licence held by the person or causes the Commissioner to conclude that improper conduct is likely to occur if the person continues to hold the licence or causes the Commissioner not to have confidence that improper conduct will not occur if the person continues to hold the licence (Decision at [10]). 7. The Decision recorded aspects of the oral evidence of the Appellant before the Tribunal. He said that he did not have a driver's licence and rode the motorcycle on a racetrack the name of which he had forgotten. He said that he had met Omar at a wedding he attended with a friend about two weeks before 1 April 2018. He agreed to lend his motorcycle to Omar and Omar said he would pay him $400. About a month before the Tribunal hearing (11 July 2019) he had seen the police video recording of in-car footage concerning the motorcycle chase on 2 April 2018. Having seen that video he thinks it may not have been Omar who had the bike, but someone else (Decision at [14]-[15]). 8. The Tribunal noted that the Appellant had informed the police that Omar had his motorcycle and that after the Local Court hearing and before the hearing in the Tribunal he had seen the video footage, and now doubts whether the footage in fact showed that it was his motor cycle that was being pursued (Decision at [21]). 9. Based upon medical reports in evidence before the Tribunal the Tribunal found that the Appellant had been diagnosed with and was receiving treatment for anxiety and depression (Decision at [23]). 10. The Tribunal considered the meaning of "fit and proper person" by reference to cases cited in the Decision and noted that the holder of a Class 1AC security licence has authority to control, protect or guard property and to act as a crowd controller or in a similar capacity: SI Act, s 11(1). That work requires the holder of a security licence to be a person who can safely be trusted to maintain public order, and safeguard community and private property and venues (Decision at [30]). 11. The Tribunal found that it was an important part of the role of the holder of a Class 1AC security licence that such a person cooperates fully with police and other regulatory authorities. The Tribunal found that it was satisfied that the Appellant had not done so when required to assist police in locating the rider of his motorcycle by providing details of that person's name and residential address. The Tribunal found that the explanation offered by the Appellant for not being able to provide details of Omar's full name and address was not plausible. The Tribunal found that the Appellant did not comply with his obligations to provide details of the person driving a vehicle alleged to have committed an offence. The Tribunal found that it had reservations about the reliability of the Appellant's evidence given his late change in position, i.e. where the Appellant suggested at the Tribunal hearing that it may not have been Omar who was riding his motorcycle, a position which was inconsistent with his position in April 2018 (when the police interviewed him) and August 2018 (when the matter came before the Local Court). The Tribunal found that the Appellant had not attempted, either before or since August 2018, to obtain the details required by police as to the rider of the motorcycle. The Tribunal further found that lack of candour and failure to cooperate with police are not consistent with the requirements and community expectations imposed on the holder of a security licence (Decision at [31]). 12. The Tribunal referred to the character references supplied by the Appellant and held that they should be given little weight. The Tribunal stated that the majority of the references did not indicate that the referee knew of the nature of the criminal offences (Decision at [32]). 13. The Tribunal found that it was not satisfied that the Appellant possessed sufficient moral integrity and rectitude of character to permit him to be safely accredited to the public as a person to be entrusted with protecting property, controlling crowds or ensuring public venues are safe. The Tribunal found he was not a fit and proper person to hold a security licence (Decision at [33]). 14. The Decision dealt with the question of whether it was contrary to the public interest for the Appellant to hold a security licence. The Tribunal noted evidence to the effect that the Appellant had a commitment to addressing his medical and psychological issues but the Tribunal found that its primary concern was the Appellant's failure to demonstrate, either in the events leading to his conviction in 2018 or in his conduct since then, that he has sufficient regard for his legal obligations or the interests of protection of public safety. As a consequence, the Tribunal found that it was satisfied that it is not in the public interest for the Appellant to hold a security licence (Decision at [36]-[37]). 15. Accordingly, the Tribunal found that it was not satisfied that the Appellant is a fit and proper person to hold a security licence and that pursuant to s 15(1)(a) of the SI Act an application to grant a security licence would be required to be refused. As a consequence, pursuant to s 26(1)(a) of the SI Act, the licence must be revoked. The Tribunal further concluded that it is not in the public interest that the Appellant continue to hold a security licence and that, accordingly, pursuant to s 26(1)(d) of the SI Act and cl 25(1) of the SI Regulation, the licence may be revoked (Decision at [38]).

The Notice of Appeal

The grounds of appeal may be summarised as follows: 1. The Appellant's doctor stated in his report that the Appellant's life and future after the revocation of the licence "got me this health position" and that it "won't affect the work If I worked again it will make me get back on my legs from all my debts". 2. The Tribunal did not consider that the number plates might be stolen or switched around. 3. The Tribunal should consider that "I was at one time a security guard/officer and I knew my duty towards the licence during work or outside". 4. The Tribunal should have considered by the revocation of the licence that "it got me in a full bad and on a high stress position of debts". 5. The decision was not fair and equitable because it did not consider that there was a high chance that the Appellant was innocent and didn't take into consideration that a video recording was hidden from the court in August 2018. 6. The Decision was against the weight of evidence, i.e. against the character references provided.

Reply to Appeal

The Respondent has filed a Reply. It stated that the Respondent supports the Decision and submitted that the Tribunal did not err in affirming the decision under review.
In respect of ground 1, the Respondent submitted that it was not relevant whether there is any causal link between the revocation of a licence and the Appellant's current mental health issues. The relevant issues are whether, on the basis of the available evidence at the time of the hearing, the Appellant was a fit and proper person to hold a licence and whether it would be in the public interest that the Appellant be entitled to hold a licence. The Respondent submitted that the Tribunal arrived at the correct and preferable decision.
In respect of ground 2, the Respondent submitted that the Tribunal did consider the possibility that the motorcycle involved in the police pursuits was not the motorcycle owned by the Appellant. The Respondent submitted that it is not in dispute that the Appellant has not attempted to obtain further information about who had the motorcycle on 1 and 2 April 2018. The Tribunal had a proper basis for its conclusion that there was an inconsistency between the Appellant's position in April 2018 (when interviewed by police) and August 2018 (when he appeared at court), and the position he raised at the hearing before the Tribunal. The Respondent submitted that even if the possibility of a plate change had taken place, it does not affect the Appellant's statutory obligation to provide police with details of who was in possession of his motorcycle on the dates in question.
In respect of ground 3, the Respondent submitted that the Appellant did not put into evidence any material to demonstrate his knowledge of his duties during or outside of work. The Respondent submitted that the Appellant's stated knowledge as to his duties and obligations as a holder of a security licence are not relevant. All persons issued with such a licence are presumed to have a requisite level of knowledge. What is relevant, and what was the focus of the evidence before the Tribunal, was whether the Appellant was a fit and proper person to hold a licence and whether it was in the public interest for him to hold a licence.
In respect of ground 4, the Respondent submitted that the Tribunal did consider submissions by the Appellant that the revocation of the security licence has caused him financial difficulties and has resulted in his anxiety and depression. However, the Tribunal concluded that the public interest outweighed the Appellant's personal circumstances.
In respect of the Appellant's submission that the Decision was not fair and equitable because it did not take into consideration that the video recording was hidden from the court, the Respondent submitted that the Appellant was legally represented and pleaded guilty to the offences before the Local Court. The Tribunal did consider the Appellant's claim concerning the video recording and found that it raised reservations about the reliability of the Appellant's evidence.
The Respondent submitted that it is "simply wrong" for the Appellant to say that the video was hidden and not revealed to him. The existence of the video was disclosed in the Fact Sheets.
In reply to the Appellant's submissions that the Decision was against the weight of evidence, the Respondent submitted that the Tribunal considered the medical reports and gave them little weight because the majority of them did not indicate that the person giving the reference knew of the nature of the criminal offences.
In summary, the Respondent submitted that the Notice of Appeal did not identify a question of law and that the requirements for the grant of leave have not been established. The Appellant has not raised any question of principle, question of public importance or any clear injustice.
Finally, the Respondent stated that the Decision does not serve as a bar to any future application which the Appellant might make.

Appellant's Written and Oral Submissions

The Appellant filed and served written submissions, the effect of which may be summarised as follows: 1. The Appellant would like the Tribunal to give him "another chance in life". That would help him establish a security business and help him pay off his debts. 2. The submissions were supported by two character references. 3. At the hearing, the Appellant submitted that he had asked people to help him track down Omar but had been unsuccessful.

Respondent's Submissions

The Respondent relied upon the written submissions attached to the Reply (referred to above). In addition, Mr El-Hage for the Respondent submitted that the video recording was available at the Local Court hearing and that the Appellant had been represented in those proceedings by a solicitor. He submitted that the appeal should be dismissed on the basis that there was no identification of a question of law and that there was no basis for giving leave to appeal.

Decision

Appeals from decisions made in the Occupational Division of the Tribunal are governed by s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). In brief, that provides that an appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other grounds. There was reference in the material provided to clause 12 of schedule 4 to the NCAT Act. That clause is applicable only to appeals from decisions made in the Consumer and Commercial Division and has no application to this appeal.
In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel dealt with the principles applicable for the granting of leave. At [84] the Appeal Panel said that in order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: see BHP Billiton v Dunning [2013] NSWCA 421 at [19]. The Appeal Panel also stated that, ordinarily, it is appropriate to grant leave to appeal only in matters that involve: 1. issues of principle; 2. issues of public importance or matters of administration or policy which might have general application; 3. an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; 4. a factual error that was unreasonably arrived at and clearly mistaken; or 5. the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.
We agree with the Respondent's submissions that the Appellant has not identified any question of law in support of his appeal. Ground 1 appears to be a plea for leniency. Ground 2 is mistaken in that the Tribunal did consider the alternative explanation for the use of the motorbike but discounted it as an unreliable explanation. Ground 3 is a submission that the Tribunal should consider that the Appellant was at one time a security officer and knew his duty. In our view that has nothing to do with the issue as to whether revocation of the licence should be affirmed or set aside. Ground 4 appears to be a plea for understanding on the basis that the revocation of the licence has exacerbated the Appellant's personal circumstances. As stated none of these grounds constitute an error of law.
The other grounds for the appeal (which are grounds requiring leave) are similarly without merit. The ground that the decision was not fair and equitable does not address the question of the Tribunal's obligation to be satisfied that the Appellant was a fit and proper person and/or that the reinstatement of the licence might be against public interest. There was sufficient evidence available to the Tribunal to make the findings that the Appellant was not a fit and proper person to hold a security licence and that it would not be in the public interest for the Appellant to hold a security licence. Similarly, the ground that the Tribunal made a decision against the weight of evidence is unsupported. The Tribunal acknowledged the character references and gave reasons for giving them little weight. In addition none of the grounds raise issues of principle, questions of public importance or the other matters referred to in Collins v Urban. Rather, the Tribunal has correctly identified the matters required by the SI Act to be considered and applied those matters to the conduct of the Appellant consequent upon the police asking him questions about the person in charge of his motorcycle on 1 and 2 August 2018. We do not consider that any leave ground has been made out by the appellant.
We are in agreement with the Respondent's submissions and that the appeal must be dismissed.
The Appeal Panel makes the following orders: 1. Leave to appeal not granted. 2. Appeal 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: 31 March 2020

Ekila v Commissioner of Police, NSW Police Force

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