Halligan v Commissioner of Police, New South Wales Police Force

NCAT Occupational|2019-12-12

Background

On 25 November 2014, the Applicant, Stephen Halligan, was issued with a Class 1AC security licence (licence), at the behest of his employer, in order to conduct safety audits at hospitals. In 2016 he was found guilty, without a conviction being recorded, of driving with cannabis in his system. The charge was dismissed under s 10 of the Crimes (Sentencing Procedure) Act 1999 (Sentencing Act), and no conviction was recorded. At that time, a licence was mandatorily revocable if such a charge was dismissed subject to a good behaviour bond. Consequently, his licence was not revoked. Unfortunately for Mr Halligan, in 2017 an amendment was made to the Security Industry Regulation (SI Regulation) which expanded the requirement for mandatory revocation of licences to include where no good behaviour bond had been ordered. Following a 'probity check' in 2019 the Respondent identified Mr Halligan as having been found guilty of a relevant offence, no conviction recorded and no good behaviour bond, and revoked his licence.
Mr Halligan has sought review of the decision revoking his licence (which had also been affirmed on internal review). The Respondent now seeks to have Mr Halligan's application for review dismissed.

Statutory provision relevant to dismissal application

Section 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) provides: 55.Dismissal of proceedings 1.The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances: … (b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance.

What test should the Tribunal apply to determine if the proceedings should be dismissed?

In Henkelman v Psychology Council of NSW [2017] NSWCATOD 161 (8 November 2017) (Henkelman) the Tribunal discussed s 55(1)(b) of the CAT Act, and, after reviewing the authorities, considered, at [59], that the following principles applied with respect to the exercise of the Tribunal's power under that section: (1) The technical legal meaning of the expression 'proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance' is simply that the application lacks a legal foundation, or "are not legally properly based": 601 Management Company Pty Ltd v Commissioner of State Revenue (20111 VCAT 2129; Re Filsell and Comcare 120091AATA 90: (2) If no purpose will be achieved by continuing the application, even though the applicant is genuine in his or her belief in the matter raised, the application should be struck out: Re Williams and Australian Electoral Commission 119951 AATA 160;(1995) 38 ALP 366; (3) The costs implications for both the Tribunal and a party continuing a misconceived application are relevant. If proceedings have no reasonable prospects at all of success, they should be dismissed, since it would be futile for the proceedings to continue, and inappropriate to use the time and resources of this tribunal, and to put the respondent to the expense that would be involved in the matter proceeding to a hearing: Filsell; Re Irving and Repatriation Commission (1997) 46 ALP 20; (4) The desire to restore honour and secure vindication has to be balanced against other factors, including the cost to the respondent: Re Irving at 26]; (5) Where the applicant is seeking only restoration of honour (that is. clearing his name) and has no chance of success in the proceeding, the matter should be dismissed: Re Irving at [26].
Referring to these principles, the Respondent contended that the following Henkelman principles are relevant to the present matter: 1. The application for review falls within the terms of s.55(1)(b) of being "frivolous or vexatious or otherwise misconceived or lacking in substance" as it lacks a legal foundation, or is not legally properly based. 2. No purpose will be achieved by continuing the application for review (even if the Applicant is genuine in his belief in the matter raised in his application for review). 3. The continuance of the application for review has costs implications for both the Tribunal and the Respondent. The proceedings have no reasonable prospects at all of success.

Are the proceedings "frivolous or vexatious"?

Although Henkelman appears to have dealt with, as a single issue, whether 'proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance', it is clear that the concept of whether proceedings may be considered 'frivolous or vexatious' is separate from a consideration of whether they are 'otherwise misconceived or lacking in substance'. Indeed, the use of 'or otherwise …' in the section provides a logical observation, even as a just a matter of interpretation, that the concepts are different.
In BDK v Department of Education and Communities [2015] NSWCATAP 129 (3 July 2015) the Appeal Panel of the Tribunal considered at [66], in respect of a matter where there was a contention that the applicant's Application for Review was 'vexatious', that there are 4 separate categories within s 55(1)(b): 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.
As I understand the Respondent's submission, there is no contention that the application for review is 'frivolous or vexatious', but that it is 'otherwise misconceived or lacking in substance'.

Are the proceedings "otherwise misconceived or lacking in substance"?

In Alchin v Rail Corporation NSW [2012] NSWADT 142 Judicial Member Wright SC (as he then was) examined s 73(5)(g)(ii) of the Administrative Decisions Tribunal Act 1977 which was the predecessor provision to s 55(1)(b) CAT Act . As to the meaning of 'misconceived' and 'lacking in substance', he said, at [25]-[26]: 25 … 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].
In my view, simply put, in deciding whether the proceedings are misconceived or lacking in substance, it is necessary to consider if the Applicant has any prospects of success. This necessarily involves some evaluation of the key facts and whether they produce, for the Applicant, the negative outcome of the application for review, which the Respondent says is inevitable.
On 7 December 2016, Mr Halligan appeared at the Wagga Wagga Local Court charged with 'Drive vehicle, illicit drug present in blood etc - 1st off". He was found guilty, but no conviction was recorded, and the charge was dismissed under s 10 of the Sentencing Act on the condition that he enter into a good behaviour bond for a period of 12 months. Mr Halligan lodged a severity appeal in the District Court. On 6 January 2017, a Notification of revocation of licence was served on Mr Halligan, but was held in abeyance pending the outcome of the appeal. On 2 February 2017, Mr Halligan's appeal was finalised; he was found guilty, without a conviction being recorded, and the charge was dismissed under s 10 of the Sentencing Act. Mr Halligan was not placed on a good behaviour bond. On 8 February 2017 Mr Halligan's licence was reinstated. On 20 June 2019, a probity assessment of Mr Halligan's suitability to hold a security licence identified Mr Halligan's finding of guilt of a prescribed disqualifying offence, and his licence was again revoked.

On what basis was Mr Halligan's licence revoked?

Section 26(1A) Security Industry Act (SI Act) provides that 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 the Act to be refused.
Section 16(1)(b) SI Act provides that the Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant has, within the period of 5 years before the application for the licence was made, been found guilty (but with no conviction being recorded) by a court in New South Wales … of an offence prescribed by the regulations in relation to the class of licence sought…
Clause 15(1)(b) and (1A) SI Regulation provides that for the purposes of s 16 of the SI Act, an offence in respect of a prohibited plant/ drug within the meaning of the Drug Misuse and Tracking Act 1985 (DMT Act), which, at s 3 and in Schedule 1 defines "prohibited drug" as including "Cannabis leaf" and "Cannabis oil"(and both terms are defined).
Section 111(i)(a) Road Transport Act 2013 (RT Act) provides that a person must not, while there is present in the persons oral fluid, blood or urine any prescribed illicit drug while driving a motor vehicle. This includes the active constituent in cannabis, (known as THC).
There was no dispute that on 24 August 2016 the Applicant was driving a vehicle at The Rock, when he was pulled over and subjected to a Random Breath and Drug Test. The roadside test initially proved negative, but when the Applicant admitted to cannabis use the previous evening, he was subjected to an oral fluid test which subsequently proved positive to THC.
As observed above, THC is a "prescribed illicit drug" under the RT Act. It is an offence under s.111 RT Act to drive a vehicle while there is a prescribed illicit drug present in a person's oral fluids.
Mr Halligan's submission addressed the substantive matter. He is employed as a Health District Security & Fire Safety Advisor with a govt agency, a position which he has held for over 5 years. He is not employed in a security role, but the licence is an essential component of his employment because he conducts audits of hospital building works, to ensure staff, patients and visitors are in a safe environment. It is a requirement of his role that he has a security licence. He said he took full responsibly for the offence, and said that the court believed that the conduct was minor and an aberration from his otherwise good character, and clear record. He had smoked a small portion of a joint the night before he undertook the RDT early the next day.
The Respondent referred to Vlahos v Commissioner of Police, NSW Police Force [2019] NSWCATOD where the Tribunal found, at [24] that Mr Vlahos' conviction for drive vehicle with an illicit drug present in blood, first offence -s 111(1)(A) of the RT Act is an offence in respect of a prohibited drug within the meaning of the DMT Act. This offence is a prescribed offence referred to in clause 15(1)(b) of the SI Regulation. The Tribunal proceeded to affirm the decision to revoke Mr Vlahos' licence. The only substantive difference between the facts of Vlahos and the present Application is that while Mr Vlahos was convicted of the offence (which invokes the 10 year 'disqualifying" period applied by s 16(1)(a) SI Act), the Applicant was subject to finding of guilt for the offence, without conviction (which invokes the 5 year 'disqualifying' period under s 16(1)(b) SI Act).
In Bourke v Commissioner of Police, New South Wales [1998] NSWADT (unreported), O'Connor DCJ explained that in the case of the mandatory refusal provisions, the Tribunal has no discretion to exercise in relation to an application for review. The only role the Tribunal could perform was to consider whether the "objective facts" relied on by the Commissioner were made out. Those facts were whether there was a conviction, or a finding of a charge proven of a kind fitting within the parameters of s 16 SI Act.
The relevant 'objective facts', which were not in dispute, are:

On 2 February 2017 the District Court found Mr Halligan guilty of an offence under s.111 RT Act and, without proceeding to conviction, dismissed the charge under the Sentencing Act.
The offence is an offence in respect of a prohibited drug under the RT Act.
The guilty finding in relation to the offence was made within the last 5 years.

Therefore, the Commissioner was required to revoke the Applicant's licence: s 26 (1A) SI Act. Similarly, the Tribunal has no discretion and must also revoke the licence.

Unfairness

Mr Halligan submitted that, as his offence occurred in October 2016, the application of the amendment to the Regulation (Security Industry Amendment (Disqualifying Offences) Regulation 2017) which came into effect on 22 December 2017, was unfair. Prior to the amendment, that he was found guilty, but the charge dismissed and no good behaviour bond imposed, did not enliven the mandatory revocation provision. Following the amendment, however, revocation became mandatory, whether or not a good behaviour bond had been imposed.
In Lokondo v Commissioner of Police [2017] NSWCATAP 137 the Appeal Panel considered the effect of changes to the law brought about by the amendment. The Appeal Panel distinguished retrospective operation of provisions from future operation based upon past events and held that the revocation of Mr Lokondo's licence was the correct and preferable decision in the circumstances. See also La Macchia v Minister for Primary Industry [1986] FCA 452; (1986) 72 ALR 23.
I am satisfied that Mr Halligan was found guilty, without a conviction being recorded, of 'Drive vehicle, illicit drug present in blood etc - 1st off which was dismissed under s 10 of the Sentencing Act. This is a finding of guilt for an offence (as required by clauses 15(1A) and 15(1)(b) of the Regulation) to which s 16(1)(b) of the SI Act applies. If Mr Halligan were applying for a new licence, the application would be required by the SI Act to be refused. Consequently, I am bound, as was the Commissioner, by s 26(1A) of the Act and Mr Halligan's security licence must be revoked; there is no discretion whatsoever not to do so.
Consequently, I find that the proceedings are otherwise misconceived or lacking in substance. Accordingly, the proceedings are dismissed pursuant to s 55(1)(b) of the CAT Act.

ORDERS 1. The application for review is dismissed pursuant to s 55(1)(b) of the CAT Act. 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: 09 March 2023

Equal Opportunity Act 1984(Vic)

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