Dr Jalil, the Applicant, has applied to the Tribunal for review of a decision, affirmed on internal review, to refuse to grant him a class 1AE/2BC security licence under the Security Industry Act 1997 (NSW).
At an early stage in the proceedings, the Respondent, the Commissioner of Police, NSW Police Force, has sought to dismiss the application summarily because the Applicant was convicted of an offence that, the Commissioner argues, is a prescribed offence, the effect of which is that the Tribunal is not able to determine the matter in any other way than to affirm the original decision.
For the reasons set out below, I have decided that the question of whether the offence is prescribed is arguable and therefore, the proceedings are not amenable to summary dismissal.
[2]
Factual findings
The facts, as set out below, including those concerning the convictions, are not in dispute.
On 5 December 2021, the Applicant was occupied driving a taxi. He collected three passengers from Dubbo airport, one of whom wanted to be dropped off at a different location in or around Dubbo from the other two. In travelling towards Dubbo, the Applicant entered a T-intersection onto the Mitchell Highway; he failed to give way, causing his car to collide with the rear trailer of a truck. The collision was serious if one measures such things by reference to the injuries suffered; the Applicant was injured and each of his passengers received fractures to various bones. One of the Applicant's three passengers, sitting in the back seat, was ejected from the vehicle - suggesting that the passenger was not wearing a seatbelt. That passenger sustained numerous serious abrasions, a serious head injury, and fractures to his ribs, spine and pelvis, which required medical transport to Sydney and four weeks of hospitalisation. The other passenger in the back seat suffered a fractured wrist and bruising. The passenger in the front seat suffered rib fractures.
Arising from the collision, the Applicant was charged with one count of Dangerous Driving Occasioning Actual Bodily Harm, one count of Negligent Driving (Occasioning Grievous Bodily Harm) - First Offence, and relevantly, three counts of Cause Bodily Harm by Misconduct pursuant to the Crimes Act 1900 (NSW), s 53 which the Facts Sheet relied on the Commissioner also refers to as Law Code Part 196. He was also disqualified from driving for 12 months.
The dangerous driving and negligent driving charges were withdrawn by the Commissioner before the matter came to court. On 25 January 2024, in the Local Court of NSW at Burwood, the Applicant was convicted of three counts of Causing Bodily Harm by Misconduct and sentenced to a 12-month community corrections order. He appealed to the District Court of NSW against the severity of the sentence. The appeal was dismissed on 1 May 2024, and his sentence came into effect from that date.
On 5 February 2024, after his conviction in the Local Court but before the determination of his appeal, the Applicant applied to the Security Licencing and Enforcement Directorate (SLED) for a security licence. SLED refused the application on 5 March 2024. The refusal was made on the basis that the Applicant had been convicted of a prescribed offence, being, in short, an offence involving the assault of any description and which the penalty imposed involved a community corrections order; it is that decision which is the subject of his application before the Tribunal.
On 21 March 2024, the Applicant requested an internal review of the decision to refuse him a security licence. The SLED deferred consideration of the internal review until after the outcome of the Applicant's appeal concerning the severity of the sentence. Then, on 7 May 2024, the decision under review was affirmed on the same basis as the original decision.
[3]
Jurisdiction to determine the matter
In this case, the Commissioner accepts that a decision has been made which enlivens the administrative review jurisdiction of the Tribunal conferred on the Tribunal under the Administrative Decisions Review Act 1997 (NSW), s 9.
In proceedings for the exercise of its administrative review jurisdiction, the Tribunal also has jurisdiction to make ancillary decisions; Civil and Administrative Tribunal Act 2013 (NSW), s 30(2)(a). An ancillary decision of the Tribunal includes a preliminary decision made under legislation that is preliminary to a decision determining proceedings, including a decision concerning whether the Tribunal has jurisdiction to deal with a matter; Civil and Administrative Tribunal Act, s 4.
[4]
Summary dismissal in the Tribunal
The Tribunal may dismiss proceedings at any stage where it considers the proceedings are, among other matters, misconceived or lacking in substance; Civil and Administrative Tribunal Act, s 55(1)(b).
In her submissions, the Commissioner noted the principles outlined by the Appeal Panel in Davis v NSW Minister for Health [2023] NSWCATAP 211 at [51]-[52] concerning the right to initiate proceedings in the Tribunal's review jurisdiction and the fact that considerations of whether the initiating application is not reasonably arguable or based on an untenable proposition of fact or law generally do not arise. The Respondent sought to distinguish the present matter from Davis and referred to earlier first instance decision of the Tribunal in support of that submission. I do not consider that the principles set out in Davis are not offended where, as here, a party asserts that the Tribunal, standing in the shoes of the original decision maker has no discretion once a particular set of facts are determined.
Davis also referred with approval at [53] to the earlier decision in BDK v Department of Education and Communities [2015] NSWCATAP 129 concerning the broad power of the Tribunal. In BDK at [66], the Appeal Panel stated:
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."
In Fox v Commissioner of Police, NSW [2016] NSWCATAD 77 at [26], the Tribunal, considering the meaning of the words "misconceived or lacking in substance" in s 55(1)(b), observed that:
"…The term "misconceived" represents a claim that does not "disclose a cause of action", while "lacking in substance" may be seen as referring to a claim where the defendant could obtain summary judgment: Alchin v Rail Corporation of New South Wales [2012] NSWADT 142. There is also an overlap between the concepts identified in s 55(1)(b). For example, a proceeding may be frivolous or misconceived because it is lacking in substance: Worldwide Enterprises Pty Ltd v Westpac Banking Corporation [2010] VCAT 1125, [39]."
In Alchin v Rail Corporation NSW [2012] NSWADT 142 at [20]-[22], which concerned dismissal under the Anti-Discrimination Act 1997 (NSW), s 102, the predecessor Tribunal noted that:
The power to dismiss summarily a complaint or part of a complaint under s 102 should be exercised with extreme caution and the Tribunal must approach these applications on the basis that applicants should be given every reasonable opportunity to set out the content of their complaints and to produce evidence to support them - Rae v Commissioner of Police NSW (No 2) [2010] NSWADT 36 at [84]ff and Razaghi v Director-General, NSW Department of Health [2002] NSWADT 4 at [27] (although this decision deals with the previous provision corresponding to s 102, the principles are equally applicable to s 102).
As to the proper approach for the Tribunal to take, it was held in Stanborough v Woolworths Ltd [2005] NSWADT 203 at [28]:
28 In the absence of extraordinary circumstances disputed questions of fact should not be resolved in a summary dismissal application. Where there is factual dispute the applicant's version of the facts should be accepted for the purpose of determining whether the complaint should be summarily dismissed. Consequently, we must proceed on the basis that everything which the applicant has put in evidence is true (see Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35]). There is, however, a distinction between evidence advanced by the applicant and the conclusions which the applicant suggests can be reasonably drawn from that evidence. We are under no obligation in a summary dismissal application to accept, without question, the applicant's assertions about a conclusion which may be drawn from the evidence. The Tribunal may reach its own conclusions about that which may be drawn from the evidence."
Put another way, the Tribunal's should ask, whether taking the applicant's case at its highest, there is enough material in the complaint to satisfy the Tribunal that there is a case to answer - Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35].
These passages are oft-cited and unchallenged and underscore the level of caution required in exercising the Tribunal's power to deal with a matter on a summary basis. However those case are principally focused on facts which is a different question than that which is raised here. More to the point are the observations in Dey v Commissioner of Railways (1948) 78 CLR 62 at 91 per Dixon J:
The application is really made to the inherent jurisdiction of the court to stop the abuse of its process when it is employed for groundless claims. The principles upon which that jurisdiction is exercisable are well settled. A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.
[emphasis added]
[5]
Is an offence under the Crimes Act, s 53 an offence involving assault of any kind?
The text of the Security Industry Act, s 16(1), as set out below, provides no discretion to the decision maker at first instance, nor the Tribunal on review. Accordingly, if the Tribunal is satisfied in relation to the matters set out in that provision, then the Tribunal has no discretion to grant a licence to the Applicant and the matter should be disposed of summarily.
The Security Industry Act, s16 provides:
16 Restrictions on granting licence - criminal and other related history
(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, …
In terms of offences prescribed by the regulations, the Security Industry Regulation 2016, cl 15(1)(c) provides that the following offences are prescribed offences for the purposes of the Security Industry Act, s 16(1)(a):
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 note that the Security Industry Regulation 2016, cl 15 prescribes other sorts of offences also, including offences relating to;
1. firearms or weapons, cl 15(1)(a),
2. prohibited drugs, cl 15(1)(b),
3. dishonest, fraud or stealing, cl 15(1)(d)
4. robbery, cl 15(1)(e) - noting that robbery is considered a hybrid offence containing elements of both theft and assault,
5. offences relating to riot and affray, stalking or intimidation, cll 15(1)(g), (h) - the each of which have elements of assault contained within their terms, see Crimes Act, ss 93B and 93C,
6. involving stalking or intimidation, cl 15(1)(i) - offences, which, by their nature may include at least the element of assault that involves placing a person in fear of immediate physical harm; Gabriel v Commissioner of Police, NSW Police Force [2018] NSWCATOD 69 at [40]-[47],
7. offences relating to terrorism, organised criminal groups and recruitment cll 15(1)(k)-(l).
From reviewing the text cl 15(1)(c) and the context of the surrounding provisions, it seems that at least one available construction of the phrase "assault of any description" may refer to the variety of assaults known to criminal law, for example; sexual, indecent, child, child sexual, assaults to police officers or designated persons under particular statutes (such customs officials, health workers, teachers, parks inspectors), forced self-manipulation (for example the offences set out in the Crimes Act, s 80A), specific offences which involve assault with a motor vehicle (offences under the Crimes Act, s 154C) and domestic violence - for example in Sauturaga v Commissioner of Police, NSW Police Force [2019] NSWCATOD 114.
In Farrah v Director, Department of Finance and Services [2014] NSWCATAP 23, the Appeal panel stated a preference for a narrow approach, confining the relevant inquiry for the Tribunal is consideration of the offence itself and not consideration of the facts and circumstances leading to the conviction for an offence. That case concerned with whether an applicant had been convicted of an offence which involved dishonesty. After considering an earlier decision of the Appeal Panel of the predecessor Tribunal RTA v Sharp Towing Pty Ltd [2008] NSWADTAP 49 which adopted a wider inquiry, the Appeal Panel stated at [39]-[42] that:
… as a matter of statutory interpretation, the provision refers to a conviction for an offence involving dishonesty. The provision does not permit an inquiry into the conduct or state of mind of the person concerned when committing the offence. The applicant's counsel gave an extreme example to illustrate the consequences of adopting that interpretation. If a person is convicted of murder but dishonestly lured the person to a remote location before killing that person, the offence would be one involving dishonesty.
Secondly, if the broader interpretation is applied, there would be a practical onus on the person to prove that he had not acted in a dishonest manner or did not have a dishonest state of mind. In relation to the factual situation in Sharp Towing, the applicant would have to prove that he did not act dishonestly in charging a particular fee. That would require a separate factual inquiry and decision on the part of the decision maker. It is unlikely that the legislature intended that such an inquiry be carried out in circumstances where disqualification is mandatory upon conviction of a particular kind of offence.
Thirdly, for the reasons we have given, the phrase should not be given a broad interpretation because the effect of disqualification is that a person will lose their livelihood.
Our conclusion is that it is the offence itself that must 'involve dishonesty.' It is not permissible to look behind the conviction for that offence to consider the particular facts of the case. The agreed facts on which a guilty plea is based, the findings of the court in relation to a contested hearing and the sentencing remarks are not relevant. Those matters cannot be relied on to find that the person has engaged in dishonest conduct or behaviour or had a particular state of mind which was dishonest. In the words of Bell J, the offence must be one which involves dishonesty "without further inquiry".
Similarly, Bell J, took a similar approach in Barber v Law Society of New South Wales (No 2) [2001] NSWSC 861 at [32];
It seems to me that the crime or offence the subject of the conviction must be the one which answers that description without further inquiry.
The approach taken in Farrah and Barber was adopted again by the Appeal Panel in Lokondo v Commissioner of Police [2017] NSWCATAP 137 and by the Tribunal at first instance in Mishra v Commissioner of Police, NSW Police Force [2019] NSWCATOD 201; both Lokondo and Mishra concerned the offence of assault occasioning actual bodily harm under the Crimes Act, s 59(1).
The Tribunal concluded, in Mishra, that the underlying facts leading to the conviction, the personal circumstances of the Applicant or the extenuating circumstances of the conviction are irrelevant to the issue. That is the approach I have taken here and accordingly, the inquiry is whether the I am able to conclude that the elements of the offence under the Crimes Act, s 53 involves assault of any description.
Conformably with earlier decisions, Principal Member Ransome in Gabriel at [38] considered that the Appeal Panel's approach in Farrah was not to narrowly construe the words describing the offence, but rather give them their ordinary meaning. The relevant word in these proceedings, "assault", is a term of law and hence, its meaning is that which is given by reference to statute or the common law; that was the approach taken by the Appeal Panel in Jacobs v Commissioner of Police, NSW Police Force (GD) [2003] NSWADTAP 55 at [17] in considering a conviction for an offence under the Crimes Act, s 66C..
The question to be determined in Gabriel was whether a person who had been convicted of an offence of using a carriage service to menace/harass/offend convicted of a prescribed offence involving intimidation. The Tribunal was satisfied that, while the word "intimation" was not included in the offence, having regard to the accepted definitions of the word "menace" and the word "intimidate" they were synonymous with each other. While there are, as the Appeal Panel noted in Luk v Commissioner of Police, NSW Police Force [2019] NSWCATAP 23 at [38], some limitations associated with the use of dictionary meanings and synonyms, the approach taken by the Tribunal in both Luk and Gabriel may be regarded as conventional and unexceptional.
Section 53 is an original provision in the Crimes Act, it provides:
53 Injuries by furious driving etc
Whosoever, being at the time on horseback, or in charge of any carriage or other vehicle, by wanton or furious riding, or driving, or racing, or other misconduct, or by wilful neglect, does or causes to be done to any person any bodily harm, shall be liable to imprisonment for two years.
Section 53 is located within Part 3 - Offences Against the Person and in Division 6, the heading of that division being "Acts causing danger to life or bodily harm". Several divisions within Part 3 expressly refer to various types of assault. Many offences contained within Division 6, for example s 37 - which makes it an offence to choke or suffocate another person - are clearly also assaults. But there are also other offences in Division 6, for example s 44 - which makes it an offence for a person with a duty to fail to render necessities of life, which may not involve assault of any description.
The offences in respect of which the Applicant was convicted are also described in Law Part Code 196. The Police-approved indictment text for an offence such as this is:
by certain misconduct, to wit, (describe misconduct) (cause/cause to be done) bodily harm to (VI) the said (AC) being at that time in charge of a vehicle, to wit (describe).
[6]
The meaning of assault
The Applicant's oral and written submissions substantially addressed the underlying facts of his particular case. For the reasons stated above, those matters are not pertinent. However, the Applicant also made the submission that usually, assault requires intent to cause harm "or at least the intent to make someone fear imminent harm. It involves direct actions that threaten or inflict injury".
Assault is not defined in the Crimes Act. In The Queen v Phillips (1971) 45 ALJR 467 at 472, Barwick CJ described assault, at common law as involving:
"the apprehension of injury or the instillation of fear or fright. It does not necessarily involve physical contact with the person assaulted: nor is such physical contact, if it occurs, an element of the assault."
Similarly, in State of New South Wales v McMaster (2015) 91 NSWLR 666; [2015] NSWCA 228 at [191] the NSW Court of Appeal considered the meaning of the term "assault" when considering a charge of common assault under the Crimes Act, s 61. In referring to the oft-cited passage in R v Knight (1988) 35 A Crim R 314 at 316-317, Beazley P, as Her Excellency then was, stated that:
An assault is any act that intentionally causes another person to apprehend immediate and unlawful violence … an act done recklessly that causes such an apprehension also falls within s 61. …
[7]
Consideration
The issue of real controversy on this application is whether the Applicant was convicted of offences involving assault of any description.
If I conclude that the offence did involve assault of any description then, having regard to his conviction for those offences and the penalty imposed upon him, the offence is prescribed and the Tribunal has no discretion but to refuse his licence, and accordingly, the proceedings would be likely to be dismissed on the basis that they are misconceived or lacking in substance: Nguyen v Commissioner of Police [2020] NSWCATOD 150 at [45]-[46], Khwaunju v Commissioner of Police, NSW Police Force [2023] NSWCATOD 80 at [32]..
The decision under review and the internal review move directly to a conclusion that the offences under the Crimes Act, s 53 involve an assault of any description. It is not explained why this conclusion as reached.
The Respondent, in her written submissions on the dismissal application, has referred to a textbook definition of assault which reflects the common law definition set out above.
In a similar manner to the offence considered in Gabriel, an offence under the Crimes Act, s 53 does not include a reference to assault. While that is not the end of the matter, the offence under s 53 requires conduct by, relevantly, a driver that is "wanton or furious", or is in some manner giving rise to misconduct or wilful neglect and that behaviour must then cause bodily harm. The Respondent, in submissions, refers to the Macquarie Dictionary definition of "wanton" as including "reckless or disregardful of right, justice, humanity, etc, as persons". However the essence of assault, as I apprehend the authorities, is to cause another to apprehend immediate or unlawful violence.
In those circumstances I cannot find that the terms "wanton or furious", nor "misconduct", nor "wilful neglect" are synonymous with the common law meaning of assault. It is also possible that the proper construction of the phrase "assault of any description" is, as I have noted above, to capture various categorisations of assault.
I have not formed a concluded view on whether the offence is a prescribed offence or not. I have concluded that the issue of whether or not the offence is a prescribed offence is an arguable one; and accordingly, that the proceedings are not misconceived or otherwise lacking in substance. The consequence of that view is that the Applicant should be given the opportunity have his application heard and determined at a full hearing where that question, and any other relevant matters regarding his suitability to be granted a licence will be fully considered.
[8]
Conclusion
Having considered the submissions of the parties and the applicable law, I have concluded that, while the facts in this matter are not in dispute, and indeed, the underlying facts are not matters of particular relevance to the consideration of the matter, the Tribunal would fall into error by accepting the Commissioner's proposition, on a summary dismissal application, that the offences for which the Applicant has been convicted and sentenced "involved assault of any description". That issue appears to be arguable and therefore the proceedings should not be disposed of by way of summary dismissal.
Accordingly, I will dismiss the Commissioner's application for summary disposal of the proceedings and make orders for the matter to be listed for directions with a view to obtaining a timetable to being the matter to final hearing.
[9]
Orders
I make the following orders:
1. Dismiss the Respondent's application for summary dismissal.
2. List the matter for directions, on a date to be fixed by the Registry, to set a timetable for the filing of evidence and submissions and to obtain a date for final hearing.
[10]
I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.
Registrar
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: 26 August 2024