QLD Protection Security Pty Ltd v Commissioner of Police, NSW Police Force

QLD Protection Security Pty Ltd v Commissioner of Police, NSW Police Force - [2018] NSWCATAP 113 - NSWCATAP 2018 case summary — Zoe

[3]

Background

On 15 May 2017, a delegate of the respondent, the Commissioner of Police, decided: 1. to revoke Mr Mohamed Khalaf's individual Operator Licence 409411315, under the SI Act. This licence was described as a "class 1AC2D security licence", which we take to refer to a licence that includes the authority conferred in respect of class 1A and class 1C by s 11(a) and (c) of the SI Act and in respect of class 2D by s 12(d) of that Act; and 2. to revoke the corporation Master Security Licence 00100963 issued to the applicant, QLD Protection Security Pty Ltd, (QPS), under the SI Act. This licence was identified as a class MD licence, which is referred to in s 10(1)(d) of the SI Act.
Mr Khalaf is the sole director and shareholder of QPS. The licenses of Mr Khalaf and QPS were revoked as a result of investigations by the Security Licensing Enforcement Directorate (SLED) into alleged unlawful provision of security training in NSW by interstate and NSW based Registered Training Organisations (RTOs). SLED's investigation included examining another company of which Mr Khalaf was the sole director. That company, Safety and First Aid Education Pty Ltd (SFAE), was an RTO and the holder of a master licence under the SI Act and it undertook training in relation to security activities. Under his class 2D licence, Mr Khalaf was authorised to provide training, assessment or instruction in relation to any security activity. SLED obtained information concerning Mr Khalaf that related to his activities as a trainer. The information included allegations of making false declarations to the relevant Queensland regulatory authority and coaching students to provide false information to SLED investigators.
The Commissioner's delegate revoked Mr Khalaf's security licences on the grounds that the delegate: 1. considered it was not in the public interest for Mr Khalaf to continue to hold a licence; 2. was not satisfied that Mr Khalaf was a fit and proper person to hold a licence; and 3. was satisfied that Mr Khalaf had contravened a condition of his licence.
The Commissioner's delegate revoked QPS's master licence on the grounds that the delegate: 1. considered it was not in the public interest for the company to continue to hold a licence; and 2. was satisfied that a close associate of the company (Mr Khalaf) was not a fit and proper person to hold a licence.
On 5 July 2017, those revocation decisions were affirmed on an internal review under s 53 of the ADR Act.
On 7 September 2017, Mr Khalaf and QPS lodged administrative review applications, in proceedings 2017/272199 and 2017/272214 respectively, challenging the 15 May 2017 revocation decisions.
On 16 October 2017, Mr Khalaf and QPS each lodged applications for a "stay" of the revocation decisions, under s 60(2) of the ADR Act.
The "stay" applications were heard on 7 November 2017. On that day, the Tribunal below relevantly made orders as follows: "Matter: 2017/00272199 1. The Decision made on 05 July 2017 to revoke the applicant's 1AC security licence is stayed pending further order of the Tribunal 2. The request by Mohamed Khalaf to stay the decision made by NSW Police Force on 05 July 2017 to revoke the applicant's 2D security licence is refused. Matter: 2017/00272214 1. The request by QLD Protection Security Pty Ltd to stay the decision made by NSW Police Force to revoke the applicant's corporation master licence is refused."
Ex tempore reasons for decision were given at the same time - Khalaf v Commissioner of Police, NSW Police Force; QLD Protection Security Pty Ltd v Commissioner of Police, NSW Police Force [2017] NSWCATAD 380. Those reasons in their entirety were as follows: "1. … There are two applications before me, one in relation to Mr Khalaf and his personal security licence, and the other in relation to the master licence held by QLD Protection Security Pty Ltd, for stays of decisions effectively revoking those licences. There are two affidavits in evidence from Mr Khalaf and written and oral submissions provided from both sides. 2. The application is under s 60 of the Administrative Decisions Review Act 1997 (NSW). I am satisfied that a stay is necessary to secure the effectiveness of the hearing and that is because, regardless of Mr Khalaf's financial circumstances, he has suffered loss from the fact that a company, of which he is director, is no longer trading, and that he does not have his personal security industry licence either. Even if he is successful ultimately on the applications, he will not receive any financial compensation. That is a matter I take into account although it is a threshold matter that allows me to then look at whether I should exercise the discretion to make an interim order or not. 3. In exercising that discretion I obviously have to take in the matters in s 60(3), the interests of the person who may be affected, submissions made by the administrator and the public interest. The public interest is the most significant consideration to be taken into account. There are allegations set out in some five hundred pages of the s 58 documents. The respondent has made findings in relation to the behaviour of Mr Khalaf personally, and as a director of the company. It is not the Tribunal's role on a stay application to make any ultimate findings about that material. It suffices to say that that material raises serious issues as to Mr Khalaf's fitness to both have a personal licence and the master licence. That is an issue that will have to be determined after close forensic analysis by the Tribunal at a hearing. However I am satisfied, on the basis of the submissions made by Mr Mattson representing the respondent, that there is evidence supporting their decision. It will be a matter for the Tribunal at the hearing to make findings and determine the significance of any risk to the public interest. 4. On the basis of the extensive allegations I refuse the application for a stay in relation to the company licence. I think the individual licence is in a different category. Apart from the 2D aspect, which relates to allowing Mr Khalaf to train staff, I am satisfied that pending a hearing of this matter an interim order should be granted in relation to the armoured guard and crowd control parts of the licences, that is 1A and 1C. 5. I also make an order expediting the hearing and I will make directions for that hearing to take place."
On 28 November 2017, QPS lodged a notice of appeal seeking leave to appeal against the order in proceedings 2017/00272214 refusing a "stay" of the decision concerning QPS.

[4]

The Appeal

The ground of appeal relied upon by QPS to challenge the refusal to grant a "stay" of the decision to revoke the QPS licence was stated in the notice of appeal to be: "1. The tribunal member failed to take into account that the applicant company did not have the capacity to conduct security training and as a result could not be exposed to any risk of impropriety as alleged by the respondent."
In the notice of appeal QPS contended that leave to appeal should be granted on the following basis: "It is submitted that leave ought to be granted in circumstances where the financial hardship that has be occasioned to the appellant company is significant. It is further submitted that the tribunal member had misconceived the scope of the appellants functions as a security training organisation as opposed to a company providing security services. The hearing on the application for a stay occurred in a rapid manner where, it is submitted, the tribunal member failed to properly comprehend the status of the appellants licence."
On 3 December 2017, the Commissioner filed his reply to appeal in which he sought to support the challenged order on the basis that: "The order is also supported on the grounds: (a) the stay is not appropriate to secure the effectiveness of the determination of the application; and (b) the delay in seeking and progressing an application for a stay is significant and tells against granting of a stay."
Leave to appeal was opposed in the reply on the following basis: "The discretionary decision at first instance is not attended by sufficient doubt to warrant its reconsideration by the Appeal Panel. Deputy President Hennessy appropriately addressed the legal considerations required by s 60 of the [ADR Act] and made a discretionary decision reasonably open to her. The delay in dealing with issue of seeking a stay, at first instance and on appeal, is significant. The Appellant company has been without a licence since 17 May 2017 (over six months ago)."
Subsequently, directions were made for the preparation of this appeal for hearing and, as part of that process, the Appeal Panel expressly noted that: "the parties consent to the hearing being determined without an oral hearing. After considering the documents filed by the parties in the Appeal, the Appeal Panel will determine whether the issues for consideration can be adequately determined in the absence of the parties as permitted by s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW)."
Having considered the documentation filed by the parties on this appeal, we are satisfied that the issues for determination can be adequately determined in the absence of the parties. Accordingly, we shall make an order under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) dispensing with an oral hearing.
In its submissions filed on 2 February 2018, QPS sought leave, in effect, to amend its proposed grounds of appeal so that they were as follows: "i) Her Honour failed to give adequate reasons; ii) Alternatively, he Honour failed to take into account the fact that the applicant was not said to have been involved in any wrong-doing; iii) Her Honour failed to take into account prejudice, which would be suffered by the applicant and its employees".
Since the Commissioner addressed these three proposed grounds of appeal in his written submissions and did not object to the amendment, we are prepared to order that QPS have leave to amend its grounds of appeal so that they are as set out in par 2 of its written submissions filed on 2 February 2018. These grounds have been quoted in full above.

[5]

Security Industry Act 1997

Carrying on security activities in New South Wales is regulated under the SI Act. The phrase "carrying on a security activity" is defined in s 4 of the SI Act as follows: "4 Carrying on a "security activity" (1) For the purposes of this Act, a person carries on a security activity if the person carries on any one or more of the following activities in the course of conducting a business or in the course of the person's employment: (a) acting as a bodyguard or acting in a similar capacity, (b) acting as a crowd controller, or acting in a similar capacity, by physical or electronic means, (c) patrolling, protecting or guarding any property, by physical means (which may involve the use of dogs or the possession or use of firearms) or by electronic means, including, but not limited to, in any one or more of the following circumstances: (i) carrying on control room operations, (ii) carrying on monitoring centre operations, (iii) carrying on retail loss prevention, (iv) patrolling, protecting or guarding cash (including cash in transit) or other valuables, (v) patrolling, protecting or guarding an airport or any other infrastructure, … (j) providing training or instruction in relation to any security activity referred to in this section, (k) assessing another person's training, instruction or competencies in relation to any security activity referred to in this section. …"
Section 7(1) of that Act establishes that only a person who holds a master licence can provide persons to carry on "security activities" and that licence holder must provide no more persons on any one day than the number of persons authorised by the master licence. There are several subclasses of master licence based on the number of persons the licence holder can provide on any one day to carry on security activities: see s 10 of the SI Act. In particular, the class MD licence held by QPS conferred authority to provide between 15 and 49 persons, each of whom must be a holder of a class 1 or class 2 licence, to carry out security activities on any one day: s 10(d) of the SI Act.
Section 7(2) provides that a person must not carry on a "security activity" unless the person is the holder of a class 1 licence or a class 2 licence that authorises the person to carry on the security activity. There are a number of subclasses of class 1 and class 2 security licences which confer authority to engage in different types of security activities. Mr Khalaf's class 1A, class 1C and class 2D licences conferred on him, respectively, the authority to: 1. patrol, protect or guard any property while unarmed (and whether while static or mobile), under s 11(1)(a); 2. act as a crowd controller or to act in a similar capacity, under s 11(1)(c); 3. provide training, assessment or instruction in relation to any security activity, under s 12(1)(d).
Given the terms of Security Industry Regulation 2016 (SI Reg), cl 12(1), only individuals, and not corporations, can apply for class 1 and class 2 licences. An individual or a corporation can, however, apply for a master licence: see SI Reg, cl 12(3) and (4). A corporation seeking a master licence is required to identify "the nominated person for the licence" being relevantly an individual who is a "close associate" of the corporation and who is to be involved in the day-to-day conduct of the corporation's security activities: SI Reg, cl 12(4)(c).
The term "close associate" is broadly defined in s 5 of the SI Act as follows: "5 Meaning of "close associate" (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."
Under s 21 of the SI Act, the Commissioner may grant a licence under the SI Act, subject to certain restrictions set out in ss 15, 16 and 16A, which concern, among other things, the suitability of the applicant and the close associates of the applicant. Section 15 relevantly provides as follows: "15 Restrictions on granting licence - general suitability criteria (1) The Commissioner must refuse to grant an application for a licence if the Commissioner is not satisfied that the applicant: (a) is a fit and proper person to hold the class of licence sought by the applicant, … … (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. … (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. …"
Section 26 of the SI Act gives the Commissioner the power to revoke a licence after it has been issued. That section relevantly provides as follows: "26 Revocation of licence (1) A licence may be revoked: (a) (Repealed) (b) if the licensee: (i) supplied information that was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence or the renewal of the licence, or (ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or (iii) contravenes any condition of the licence, or (c) (Repealed) (d) for any other reason prescribed by the regulations. (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."
Where the respondent has revoked a person's licence issued under the SI Act, s 29(1)(c) gives that person a right to seek administrative review of the decision to revoke the licence. Consequently, and by operation of s 30(3) of the NCAT Act and s 7 of the ADR Act, the Commissioner's decision to revoke a person's licence under the SI Act is an "administratively reviewable decision" for the purposes of the NCAT Act and the ADR Act.

[7]

Principles concerning stays and other orders under s 60 of the ADR Act

The Tribunal recently considered the power under s 60 of the ADR Act in Loveday v Commissioner for Fair Trading [2018] NSWCATAD 80 (Loveday). In that decision it was held at [8]: "… Section 60(2) and (3) give the Tribunal a single discretionary power to make a stay order or to refuse to make such an order taking into account all relevant considerations. Secondly, the words "to secure the effectiveness of the hearing" include a situation where the applicant will suffer irreparable loss in the sense that no recompense for it can be obtained if the application is ultimately successful: Re Pelling and Secretary, Department of Aviation [1984] AATA 179; (1984) 5 ALD 638 at 639. It is not confined to the situation where a hearing would be pointless because the applicant will go out of business if a stay is refused. …"
The relevant considerations in deciding whether to make an order under s 60(2) include: 1. whether the order is appropriate to secure the effectiveness of the determination of the application for review: ADR Act, s 60(2); 2. whether the order is desirable taking into account: 1. the interests of any persons who may be affected by the determination of the application for review: ADR Act, s 60(3)(a), Loveday at [10], Re Scott and Australian Securities and Investments Commission [2009] AATA 798 (Re Scott) at [4]; 2. any submission made by or on behalf of the administrator who made the decision to which the application relates: ADR Act, s 60(3)(b), Loveday at [10], Re Scott at [4]; 3. the public interest: ADR Act, s 60(3)(c), Loveday at [10], Re Scott at [4]; 1. the applicant's prospects of success on the application for review: AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 (AVS Group) at [129], Loveday at [10] and [11], Re Scott at [4].
The circumstances that are relevant in any particular case to the considerations identified above may well overlap or be interrelated.
In addition, in Loveday, Deputy President Hennessy also relevantly noted at [16]: "… In AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 at [16], Basten JA described the word "stay" as "a somewhat imprecise term which is usually understood to refer to a future event". In that case, which involved the revocation of a licence, the Court of Appeal acknowledged at [16] to [18] and [95] to [96] that while it is not possible to "stay" a revocation decision, s 60(2) is wide enough to enable the Tribunal temporarily to reinstate a licence that has been revoked."
Like the AVS Group case referred to in Loveday, the present matter involves the revocation of a licence. Although the order which is the subject of this appeal was one refusing an application for a "stay" of the revocation of QPS's master licence, we shall proceed on the basis that QPS is seeking to challenge the decision refusing an application, in effect, for temporary reinstatement of its master licence.

[8]

QPS's submissions

On the question of leave to appeal, QPS accepted that leave was required and that the decision whether or not to grant leave was discretionary.
As to the relevant principles, QPS relied upon what had been said by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 (Collins v Urban) at [84] and in particular 84(c) and (d) to the effect that it was appropriate to grant leave in the case of: "(c) 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; (d) a factual error that was unreasonably arrived at and clearly mistaken".
In particular, it was submitted that the Tribunal below confused the position of QPS, which provided non-training security services, with that of SFAE, which provided security training. Thus, the Tribunal misapprehended the facts and, as a consequence, the decision was "vitiated". This was said to fall within par (d) referred to in the preceding paragraph.
QPS also contended that, although the Tribunal below found that a refusal to grant interim relief to Mr Khalaf would cause hardship to him, it did not address any hardship to QPS or its employees. The relevant evidence before the Tribunal was said to include that QPS could no longer trade and was unable to pay its debts and that the employment of security guards had to be terminated. This failure by the Tribunal was said to fall within par 2(c) of the principles derived from Collins v Urban at [84].
QPS also made submissions on the substantive grounds of appeal, if leave were granted. As to the first and second grounds of appeal, QPS noted that, in issuing the notice of revocation, the Commissioner "did not, in any way, suggest that [QPS] had been implicated in any wrong-doing. … [T]he material filed on behalf of Mr Khalaf and [QPS] … demonstrated that [QPS] was not involved in the provision of training, but rather security services."
It was submitted, in respect of the first ground, that there was no explanation in the reasons why QPS's application was refused and, accordingly, the reasons for decision were inadequate as they "simply [did] not disclose the actual reasons upon which [the Tribunal's] conclusion rested". Concerning the second ground, it was contended that the Tribunal's statement that "[o]n the basis of the extensive allegations I refuse the application for a stay in relation to the company licence" indicated that the Tribunal found that the allegations of misconduct related to QPS whereas, in fact, they concerned SFAE's conduct. On this basis, it was submitted that the Tribunal either misapprehended the facts or failed to take into account the relevant consideration that there were no allegations of impropriety against QPS.
The third ground of appeal was to the effect that the Tribunal failed to take into account the prejudice that QPS would suffer if the revocation decision was not temporarily reinstated. This was a mandatory consideration because of s 60(3)(a). It was submitted that the relevant evidence of prejudice was contained in Mr Khalaf's affidavit of 13 October 2017 which was before the Tribunal below.

[9]

The Commissioner's submissions

The Commissioner submitted that the decision under appeal was interlocutory and leave to appeal from such decisions should be limited to cases where: 1. in all the circumstances, the decision is attended by sufficient doubt to warrant its reconsideration by the Appeal Panel; and 2. substantial injustice would result if leave were refused, supposing the decision to be wrong, relying on the Full Federal Court decision in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399 and Collins v Urban at 84 and (2)(b) and (c).
The Commissioner also contended that the decision of the Tribunal at first instance under s 60(2) of the ADR Act was discretionary and, accordingly, any challenge to that decision on appeal was subject to the constraints inherent in the principles in House v The King (1936) 55 CLR 499 at 504-5.
As to the first of the three grounds of appeal, the Commissioner submitted that the reasons were adequate and no error was disclosed.
In respect of the second ground of appeal, the Commissioner's contention was that, because Mr Khalaf was a "close associate" of QPS and given the allegations against him and the terms of s 26(1A) and s 15(1)(a) and (5) of the SI Act, it was open to the Tribunal to conclude that "the extensive allegations [provided a legitimate basis to] refuse the application for a stay in relation to the company licence" of QPS. Thus, it did not follow that the Tribunal either misapprehended the facts or failed to take into account the relevant consideration that there were no allegations of impropriety against QPS.
The Commissioner submitted that the third ground of appeal was without foundation because the Tribunal did refer to the evidence of hardship or prejudice, which was predominantly if not entirely focused upon Mr Khalaf's position. Such limited evidence as there was of hardship to QPS was taken into account by the Tribunal. No error of law was disclosed.
In addition, the Commissioner relied upon QPS's delay as demonstrating a lack of seriousness of the issues and a lack of need to secure the effectiveness of the review application by an order under s 60(2) of the ADR Act. It was said that the public should not be deprived of the benefit of the revocation decision, especially after 10 months' delay.
Accordingly, in the Commissioner's submission, leave to appeal should be refused as the decision was not attended by sufficient doubt or, if leave were granted, the appeal should be dismissed.
It is convenient for us to deal with the question of leave to appeal first and then address, to the extent necessary, the substantive grounds of appeal.

[10]

Leave to appeal - consideration

It was not in dispute that a decision such as the present concerning the granting of a stay or other order affecting the operation of a decision, under s 60(2) of the ADR Act, is an interlocutory decision within the definition of that term in s 4(1) of the NCAT Act. Under s 80(2)(a) of the NCAT Act, such a decision may only be appealed with the leave of the Appeal Panel.
The principles concerning the granting of leave to appeal under s 80(2) were also not the subject of any significant dispute between the parties.
We accept that we should apply what was said by the Appeal Panel in Collins v Urban at [84]: "84.The general principles derived from these cases can be summarised as follows: 1. 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: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; 2. Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) 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; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) 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, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; 3. In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there."
The Full Court of the Federal Court has formulated the test for the granting of leave to appeal in different terms. In Nationwide News Pty Limited v Rush [2018] FCAFC 70, it was held at [3] that an applicant for leave: "must usually show that: (a) in all the circumstances, the decision to be appealed is attended with sufficient doubt to warrant its reconsideration on appeal; and (b) supposing the decision to be wrong, substantial injustice would result if leave were refused: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399 (Sheppard, Burchett and Heerey JJ)."
We do not think that there is intended to be any difference in substance between the applicable principles in relation to the granting of leave to appeal stated by the New South Wales Court of Appeal (and summarised in Collins v Urban at [84]) and the formulation adopted by the Full Federal Court.
The present is not a case that involves an issue of principle or a question of public importance. Nor is this a case where the Tribunal below went about the fact finding process in an unorthodox or unfair manner. QPS put its case for leave on two alternate bases. First (based mainly upon the first and second ground of appeal), it was submitted that there was a factual error that was clearly mistaken in the Tribunal's conclusion that "[o]n the basis of the extensive allegations I refuse the application for a stay in relation to the company licence [of QPS]". The factual error was that, contrary to the implicit finding in that conclusion, none of those allegations related to QPS at all but rather they related to SFAE. Thus, it was argued there was no basis in the "extensive allegations" which justified revoking QPS's licence. Thus, refusing QPS's application for a "stay" would involve an injustice.
Secondly (based mainly upon the third ground of appeal), there was an error that was plain and readily apparent which was central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand in that "at no stage during her reasons did [the Tribunal] mention detriment caused to [QPS] or its employees at all" despite there being "clear evidence of such detriment in Mr Khalaf's affidavit of 13 October 2017" and such detriment being a mandatory consideration under s 60(3)(a) of the ADR Act.
We do not accept that either of these bases justifies a grant of leave to appeal in the circumstances of the present case.

[11]

First basis for leave to appeal - consideration

As to the first basis, it does not appear to us that the Tribunal's refusal to grant relief in respect of QPS's licence came about as a result of a clear factual error. It is true that the Tribunal's ex tempore reasons for decision are not long or elaborate. But this is not surprising or deserving of criticism, given the interlocutory nature of the application and the legitimately short length of time allocated for the hearing: see the general discussion in Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [42] - [57] and for example Re Don [2006] NSWSC 1125 at [39] and Grant v Local Court of New South Wales [2015] NSWSC 356 at [51].
The ex tempore reasons do identify that the Tribunal understood it was considering both Mr Khalaf's and QPS's applications concerning revocation of their respective licences, at [1]. The Tribunal referred to the two affidavits that had been read, at [1], and correctly noted, at [2], that the applications were under s 60 of the ADR Act. Mr Khalaf's position was considered at [2] and the Tribunal found that he suffered loss from, among other things, "the fact that a company [which we understand to be a reference to QPS given the evidence in pars 5 and 10 to 13 of Mr Khalaf's affidavit of 13 October 2017], of which he is a director, is no longer trading".
The Tribunal identified, at [3], the relevant considerations referred to in s 60(3) of the ADR Act. As to the public interest, the Tribunal took into account the material in the s 58 documents which related to the behaviour of Mr Khalaf "personally, and as a director of the company". The reference to "the company" is ambiguous. Annexed to Mr Khalaf's affidavit of 13 October 2017 was the notice of revocation to QPS dated 15 May 2017, which was also contained in and supported by the s 58 documents. The reasons for revocation of QPS's licence include Mr Khalaf's activities as a director SFAE not QPS. In these circumstances, we think that the Tribunal's reference to "the behaviour of Mr Khalaf … as a director of the company" is a reference to his behaviour as a director of SFAE. The material concerning both Mr Khalaf's personal conduct and his conduct as a director of SFAE appear to be what raised, for the Tribunal, "serious issues as to Mr Khalaf's fitness to both have a personal licence and a master licence", referred to at [3]. The Tribunal also noted that it would "be a matter for the Tribunal at the [substantive] hearing to make findings and determine the significance of any risk to the public interest".
At [4], the Tribunal states "[o]n the basis of the extensive allegations I refuse the application for a stay in relation to the company licence". The "company licence" clearly refers to QPS's master licence which is the subject of one of the applications before the Tribunal. The reasoning concerning QPS is truncated. Nonetheless, we understand the "extensive allegations" to which the Tribunal was referring included the material concerning both Mr Khalaf's personal conduct and his conduct as a director of SFAE. This was what was relied upon by the Commissioner's delegate in the notice of revocation to QPS dated 15 May 2017 (annexed to Mr Khalaf's affidavit of 13 October 2017 which was before the Tribunal). In that notice it was concluded: "I AM SATISFIED THAT A CLOSE ASSOCIATE OF THE CORPORATION [QPS] (Mohamed Khalaf) IS NOT A FIT AND PROPER PERSON TO HOLD A LICENCE."
That notice went on to observe the following: s 26(1A) of the SI Act required the Commissioner to revoke a licence if satisfied that, were the licensee applying for a new licence, the application would be refused; and that s 15(1)(a) of the SI Act required the Commissioner to refuse to grant an application for a licence if not satisfied that the applicant was a fit and proper person to hold the class of licence sought. It should be noted here that s 15(5) relevantly provides that "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". Thus, if the Commissioner was not satisfied that Mr Khalaf, who was a close associate of QPS, was relevantly a fit and proper person, the Commissioner would also not be satisfied that QPS was a fit and proper person to hold the licence. If this is so, QPS's licence would have to be revoked.
In these circumstances, it can be seen that the Tribunal's statement that "[o]n the basis of the extensive allegations I refuse the application for a stay in relation to the company licence" does not involve any clear factual error. The extensive allegations concerning SFAE and Mr Khalaf, in his capacity as a director of SFAE, can provide a legitimate foundation for the Commissioner's decision to revoke QPS's licence. We do not think that the Tribunal's statement necessarily involves any mistake as to the role of QPS or any other factual error.
The conclusion was open to the Tribunal and its reasoning was not obviously affected by factual error. Accordingly, we do not accept that the first basis relied upon by QPS justifies the grant of leave to appeal.

[12]

Second basis for leave to appeal - consideration

The second basis relied upon by QPS in support of leave to appeal was that there was a readily apparent error because the Tribunal failed to take into account the mandatory consideration of detriment to QPS or its employees if the revocation was not temporarily reinstated. Further, if the decision to refuse reinstatement were allowed to stand, there would be a significant injustice.
QPS contended that there was evidence of detriment to QPS in Mr Khalaf's affidavit of 13 October 2017 and, by ignoring this, the Tribunal fell into significant error. The difficulty for QPS is that the parts of Mr Khalaf's affidavit concerning detriment relate primarily, if not exclusively, to himself and not to QPS. In particular: 1. par 9 refers only to Mr Khalaf's being unable to maintain any employment in the security industry after receiving the notifications of the revocations; 2. par 14 refers to a document described as "my tax payments which demonstrates that I currently owe approximately $44,000 to the Australian Taxation Office of which I am being charged interest on", although the document annexed refers to QPS as the "client"; 3. pars 15 and 16 establish that Mr Khalaf took out a loan with RAMS for $3.4 million with monthly interest of $17,000 and "[s]ince my security licences have been revoked I have lost my income and had to borrow money and use some savings in order to make the interest only payments"; 4. par 17 states that at the present time Mr Khalaf is in the process of refinancing in order to satisfy the Taxation Office and other debts "incurred since the revocation of my licence"; 5. pars 18 and 19 contain evidence that Mr Khalaf took out a lease in 2015 of a vehicle used for the purpose of his work in the security industry and the monthly payments are $2,800. He has had to borrow money from relatives to make the repayments on the vehicle; 6. pars 20 to 23 deal with Mr Khalaf's children's private school fees and how he is borrowing to pay them, as well as referring to the enormous impact of this revocation on his life in general and the fact that it has jeopardised his family in more ways than one; 7. par 24 states that since the decision to revoke his licences, Mr Khalaf has placed a lot of reliance on his overdraft facility to get by and for most daily expenses such as groceries; 8. par 25 notes that Mr Khalaf has suffered an amount of stress and anxiety second to none "as the result of the revocations has meant that approximately 50 staff members of the company have lost their full-time positions. The staff members had families and were hard working people"; and 9. par 30 states that the fact that Mr Khalaf has been unable to carry out his normal work as a security guard has also caused distress between himself and his wife.
In the affidavit of 13 October 2017, there was no specific or detailed information concerning the detrimental impact of the revocation on QPS. In addition, what might properly have been inferred as to QPS's position was very limited. This is because there was no material before the Tribunal concerning whether QPS was, or might be, able to obtain a corporate master licence and continue in operation by having a "nominated person for the licence" (for the purposes of cl 12(4)(c) of the SI Reg) other than Mr Khalaf, if Mr Khalaf removed himself as "a close associate" of QPS. Nor was there before the Tribunal any information as to whether any former employees of QPS had been able to obtain alternative employment in security-related work or other work.
In the circumstances, we are of the view that QPS failed to provide any adequate basis upon which the Tribunal could reach a reliable conclusion concerning whether the revocation of its master licence had a significant detrimental impact on QPS. In addition, QPS did not point to any reference in the transcript of the proceedings at first instance where detriment to the company was mentioned. Nor could we find any such references in the transcript. We are therefore led to conclude that no oral submissions were made concerning adverse consequences for QPS, as opposed to Mr Khalaf, during the hearing. In these circumstances, it is perhaps not surprising that the Tribunal at first instance in its ex tempore reasons delivered immediately at the end of the hearing did not make any findings of, or refer to, detriment suffered by QPS.
The Tribunal did not, in the circumstances, clearly fail to take into account a mandatory consideration that was raised in the proceedings. The evidence before the Tribunal did not specifically address QPS's position and any detriment to QPS was not addressed in the submissions made on the company's behalf. Consequently, we do not think that there is a readily apparent error on the Tribunal's part that would mean that there would be a significant injustice if the Tribunal's decision were allowed to stand.
For these reasons, we do not accept that QPS's second basis justifies a grant of leave to appeal.

[13]

Further issues concerning leave to appeal

There is a further reason why, even if we thought leave to appeal might be justified on one or both of the bases relied upon by QPS, we would not grant leave.
If leave to appeal were granted and the appeal was upheld, there are insufficient findings or uncontroverted evidence available to the Appeal Panel to enable it to determine whether the decision to refuse to make an order under s 60(2) of the ADR Act concerning QPS's licence should be confirmed, varied or set aside. Consequently, the matter would have to be remitted, under s 81(1)(e) of the NCAT Act, for reconsideration by the Administrative and Equal Opportunity Division with further evidence.
As the decision under s 60(2) was interlocutory, there was and is nothing preventing QPS from making a further application for an order temporarily reinstating QPS's licence pending determination of the review application, on the basis of further or different evidence. In saying this, we are not expressing a view as to how such an application would be decided or what the relevant considerations might or might not include.
Further, s 60(4) of the ADR Act provides: "While an order is in force under this section (including an order that has previously been varied on one or more occasions under this subsection), the Tribunal may, on application by a party to the proceedings, vary or revoke the order by another order."
Thus, QPS or the Commissioner could seek to vary or revoke any order previously made under s 60 if the circumstances changed or there was different evidence available. The approach evident from s 60(4) is consistent with further applications being able to be made under s 60, even if a previous application has been refused, if the evidence or circumstances change.
Accordingly, it appears to us that there would be little if anything to be gained from granting leave to appeal. QPS and the Commissioner can make further applications in relation to the s 60 orders without leave to appeal being granted and any appeal being allowed or dismissed.
Further, the requirement, when exercising any power under the NCAT Act, to facilitate the just, quick and cheap resolution of the real issues in the proceedings also, in our view, tells against granting leave to appeal. This is because any successful appeal is only likely to leave QPS in the same position it would be in without the appeal, namely being able, in effect, to make a further application supported by appropriate evidence for an order under s 60(2).

At a glance

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Judgment (16 paragraphs)

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Legislation Cited (4)

Cases Cited (15)

Cited By (29)