Zeitoune v Commissioner of Police, NSW Police Force

NCAT Occupational|2024-03-26

REASONS FOR DECISION

John Zeitoune has held licences under the Security Industry Act 1997 (the Act) since 2003. On 12 September 2022 his Class 1AC 2AD Security Operative Licence was revoked by a delegate of the Commissioner of Police, NSW Police Force (the Commissioner). That decision was affirmed on internal review on 19 September 2022 and Mr Zeitoune then sought review of the decision by the Tribunal under the Administrative Decisions Review Act 1997 (ADR Act).
The basis upon which the licence was revoked was that on 9 August 2022 Mr Zeitoune was charged with the offence of "Bribe a Commonwealth Public Official (Aid, Abet, Counsel or Procure)" under the Criminal Code Act 1995 (C'wealth). Mr Zeitoune's security licence was revoked under s 26(1)(d) of the Act and cl 25(1) of the Security Industry Regulation 2015 as it was found that it was not in the public interest for Mr Zeitoune to continue to hold the licence. Mr Zeitoune denies the charge.
Following the filing of the review application on 14 October 2022 the proceedings were adjourned several times with the consent of the parties pending the outcome of the Commonwealth criminal proceedings. On 19 September 2023, although the criminal proceedings were yet to be finalised, at the request of Mr Zeitoune directions were made for the filing of evidence in order to progress the substantive matter. However, on 5 October 2023 the Commissioner filed an application seeking a stay of the review proceedings pending finalisation of the criminal proceedings. That application was refused on 21 December 2023.
On 22 January 2024 the Commissioner filed an application for summary dismissal of Mr Zeitoune's application. Detail of the application is set out below.
The latest advice received by the Tribunal is that Mr Zeitoune's criminal matter is listed for hearing in the District Court on 24 August 2024.

The dismissal application

The Commissioner seeks orders under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) dismissing the review application on the basis that it is lacking in substance.
As noted above, Mr Zeitoune's security licence was revoked on 12 September 2022. In the ordinary course of events that licence would have expired on 18 November 2023. The Commissioner argues that the review proceedings lack practical utility as the licence, if it had not been revoked, would have expired and the Tribunal now has no power to reinstate that licence.
Under s 63 of the ADR Act the Tribunal, in determining Mr Zeitoune's substantive review application, can affirm the decision, vary the decision, set aside the decision and make a decision in substitution, or set aside the decision and remit the matter for reconsideration by the Commissioner. The Commissioner points out that, under Part 1 of Schedule 2 to the Security Industry Regulation, the maximum term of a security licence is five years. On that basis the Commissioner submits that, irrespective of how the Tribunal decides the substantive application, as the licence has expired, there are no powers available to the Tribunal which could result in the reinstatement of the licence or extending the licence period. The Tribunal also cannot grant a new licence.

Mr Zeitoune's response

Mr Zeitoune, however, argues that the proceedings have a genuine practical utility. In particular, he submits a decision by the Tribunal that varies or substitutes another decision for that under review may have a significant utility for him in seeking a new licence or a renewal. He also argues that there is a broader industry and public utility in the proceedings being determined. This is because a person should be able to exercise their lawful right to challenge a decision by the Commissioner (particularly a wrong or invalid decision). To summarily dismiss matters where a licence has expired means that the Commissioner's decisions (made without valid grounds) can never be challenged or tested in the Tribunal as by force of the Act the Commissioner must refuse to allow the person to apply for a new licence or renew an existing licence.
Some of Mr Zeitoune's arguments are predicated upon an argument that, because his licence has been revoked, he cannot in fact apply to renew the licence or apply for a new licence. He refers to s 15(1)(f)(i) of the Act which provides that the Commissioner must refuse to grant an application for a licence if the Commissioner is not satisfied that the applicant is a fit and proper person to hold the licence. He also refers to s 17(1)(4) which provides that the Commissioner must refuse an application to renew a licence if the Commissioner is satisfied that, if the applicant were applying for a new licence, the application would be required by the Act to be refused.
Mr Zeitoune states that these provisions means he is not in fact allowed to apply to renew his licence or to apply for a new licence. He has provided an affidavit in which he states he attempted to renew his licence online on 28 October 2023 but was not able to as he received a message on the screen that said his licence could not be found to be renewed. He then spoke with an officer from the Security Licencing & Enforcement Directorate of the Commissioner (SLED) who advised him that he was not able to renew his licence as it had been revoked by the Commissioner in August 2022. Mr Zeitoune states that he telephoned SLED on 8 March 2024 and spoke with an officer named Meg. He states that Meg told him that his licence had previously been cancelled and, until that matter was resolved, he could not apply for a new licence.
The submissions of Mr Zeitoune are that he is not allowed to apply for a new licence nor is he able to apply for a renewal of his licence solely because the Commissioner has determined that he is not a fit and proper person to hold a licence. As a result, because the relevant provisions in ss 15 and 17 of the Act referred to above, the Commissioner must refuse to grant him a licence or renew his licence. He therefore submits that his review application should not be dismissed and he should be permitted to proceed with the application as, if the Tribunal does not affirm the revocation decision, this will allow him to apply for a licence.
Meg Adiao, an officer at SLED, has provided an affidavit in which she states that she was the officer who spoke with Mr Zeitoune on 8 March 2024. She refers to her contemporaneous note of the conversation and states that her recollection is that Mr Zeitoune inquired about renewing his licence, not about applying for a new licence. Ms Adiao states that, after viewing Ms Zeitoune's records in SLED's online system, she advised him that as his licence had been revoked it could not be renewed.
The Commissioner submits, and I agree, that Mr Zeitoune has misconstrued the provisions of the Act. It may also be that Mr Zeitoune misunderstood what he was told by Ms Adiao. There is no prohibition in s 15(1) on a person applying for a new licence in circumstances where a licence has previously been revoked. What s 15(1) does is prevent the Commissioner from issuing a licence in certain circumstances. Relevantly, the Commissioner must refuse a licence if she is not satisfied that the applicant is a fit and proper person to hold a licence. Any decision by the Tribunal in the current review application would have no effect on Mr Zeitoune's ability to apply for a new licence.
In relation to Mr Zeitoune's statement that he was prevented from renewing his licence, a revoked licence is not a licence in force under the Act (see s 3(1)) and cannot be renewed. Furthermore, as the Commissioner points out, any application by Mr Zeitoune to renew his expired licence needed to be made within 90 days of its expiry and it is now too late for him to do so (see s 17(3) of the Act).
Nevertheless, despite Mr Zeitoune's misconstruction of the Act, the points made by him about the utility of the application proceeding to determination remain valid and should be considered.

Relevant law

The Commissioner submits that the review application should be dismissed under s 55(1)(b) of the CAT Act on the basis that it is lacking in substance. Section 55 provides that the Tribunal may dismiss an application at any stage of the proceedings if the Tribunal considers that the proceedings are "frivolous or vexatious or otherwise misconceived or lacking in substance".
There does not appear to be any disagreement between the parties that Mr Zeitoune's administrative review application was validly made or that the decision under review had operative effect from the date it was made until the date of expiry of the licence. It is also agreed that the decision to dismiss proceedings under s 55 of the CAT Act is discretionary.
Whether proceedings should be dismissed as lacking in substance in circumstances where the decision sought to be reviewed has no operative effect in that a licence, authority or entitlement has expired since the review application was made has been the subject of several decisions of the Tribunal and the Appeal Panel. In AVS Group Australia Pty Limited & Tony Sleiman v Commissioner of Police, NSW Police Force [2012] NSWADTAP 24 the Appeal Panel, in considering equivalent provisions to those in the NCAT Act, said at [24]-[26]: 24 There is no fixed rule of the kind for which the Commissioner contends that would have required the Tribunal to enter an order of dismissal simply because the underlying entitlement, licence or authority had ceased to operate. 25 In these circumstances, the question of whether the Tribunal should continue to deal with the dispute is to be judged by reference to discretionary considerations relating to the proper management of the proceedings, and having regard to the statutory powers given to the Tribunal including its formal powers of dismissal. 26 Those discretionary considerations will include the question of whether there is a live dispute or controversy. In that regard, I accept, of course, that it is not appropriate that the Tribunal, or the Appeal Panel, spend time dealing with idle disputes or giving advisory opinions, both for resources reasons as well as ones of intellectual precision. I accept, too, that a dispute may lose its character as a real controversy during the time it is before the Tribunal or the Appeal Panel.
In BDK v Department of Education and Communities [2015] NSWCATAP 129 at [41] the Appeal Panel said that "a reasonably broad connotation" should be given to the meaning of the four categories of conduct identified by s 55(1)(b). In Owners Corporation of Strata Plan 4521 v Zouk (2007) 69 NSWLR 61; [2007] NSWCA 23 at [41] the Court of Appeal said that, when considering the phrase "lacking in substance", it is necessary to have regard to the statutory context in which the text appears. In this matter that is the NCAT Act.
Recently, the Appeal Panel in Davis v NSW Minister for Health [2023] NSWCATAP 211 said that, given the breadth of the Tribunal's jurisdiction, the type of proceedings that are the subject of a dismissal application may be relevant in considering the meaning of the phrase "lacking in substance". At [53] the Appeal Panel stated that a range of findings could potentially justify a conclusion that proceedings are "lacking in substance", including that the proceedings "would be of no practical effect", or that the initiating application was based on an "untenable proposition of fact or law" or was "not reasonably arguable". The Appeal Panel noted that s 55(1)(b) of the NCAT Act empowers the Tribunal to govern its own processes, to ensure that its processes are not abused and to ensure that its resources are applied to resolving real, not confected, amorphous or nebulous disputes.
In Davis the Appeal Panel held that, having found that proceedings are lacking in substance, in considering the exercise of the discretion to dismiss the proceedings, the Tribunal is obliged to consider whether permitting the proceedings to continue facilitates "the just, quick and cheap resolution of the real issues in the proceedings" as set out in the guiding principle in s 36(2) of the NCAT Act.

Are the proceedings lacking in substance?

The Commissioner's primary submission is that, as determination of the substantive proceedings cannot result in Mr Zeitoune getting his security licence reinstated as it has expired, there is no practical utility in the continuation of the proceedings. The proceedings are therefore lacking in substance.
Mr Zeitoune accepts that the outcome of the review proceedings cannot result in reinstatement of his licence. He states, however, that a decision of the Tribunal would have a significant impact in relation to his reputation and his business. I note that Mr Zeitoune has divested himself of his interests in his former company and that company's master licence has been reinstated. I accept, however, as set out in his affidavit of 11 March 2024, he has lost income as a result of the revocation. Mr Zeitoune also argues that a finding by the Tribunal that the licence should not have been revoked and a decision that the revocation should be set aside would have a great effect upon any application by him for a new licence.
The Commissioner refers to a number of decisions in support of her contention that the proceedings lack practical utility. In Davis the Appeal Panel dealt with an appeal from the Tribunal's decision in Davis v Minister for Health [2022] NSWCATAD 342 in which the Tribunal exercised its discretion to dismiss Ms Davis's application on the basis it was lacking in substance. The Tribunal's decision, which was upheld by the Appeal Panel, related to a decision of the Minister for Health to make directions under various Public Health Orders concerning the vaccination status of teachers in the context of the COVID-19 pandemic. By the time the dismissal application was heard by the Tribunal no such Public Health Orders remained in force. The Tribunal rejected arguments made by Ms Davis that there was utility in the proceedings continuing as determination of the review would have a practical effect regarding:

her employment which had been terminated;
allowing her to "correct the record" and redeem her reputation; and
matters characterised as being of public importance but where the outcome of the review would have no direct effect between the parties or on how public health orders may be made in the future.

In Fox v Commissioner of Police [2016] NSWCATAD 77 the Tribunal found that, as the sole purpose of continuing with the application to review revocation of Mr Fox's firearms licence was his desire to clear his name (he no longer being eligible to hold a firearms licence in NSW as he had moved to another state), the matter should be dismissed. The Tribunal noted that the proceedings could not result in the licence being restored to Mr Fox and there was therefore no longer a "live controversy". The Tribunal also referred to the resources required to conduct a hearing and noted that matters he wished to raise in the revocation proceedings could be raised in any proceedings concerning a new licence in the state to which he had relocated.
In NG v Chinese Medical Board of Australia [2017] NSWCATOD 36 the Tribunal found there was no practical utility in proceeding with an application in circumstances where the respondent had conceded the decision in question had been made in error and had restored the applicant's full registration. In dismissing the application the Tribunal referred to the fact that there was no longer a live controversy to be determined, that proceeding to a hearing would be costly and not in keeping with the objects of the NCAT Act and any effect upon the applicant's reputation was ameliorated by the Tribunal's reasons for decision.
Similarly, in Samuell v Medical Council of New South Wales [2020] NSWCATOD 149 the Tribunal dismissed Dr Samuell's application against a decision to impose a condition on his registration in circumstances where the condition had subsequently been removed (although the decision to impose the condition had not been rescinded). The Tribunal in this case also rejected arguments concerning any adverse effect upon Dr Samuell's reputation by the imposition of the condition or that his future dealings with the Medical Council would be affected if the decision was not set aside. The Tribunal held that, balancing the cost and time to the Tribunal and the parties if the matter proceeded against the utility of proceeding, the matter should be dismissed.
The Commissioner placed emphasis upon the decision of the Appeal Panel in Joiner v Commissioner of Police, NSW Police Force [2023] NSWCATAP 254. That was a case where Ms Joiner appealed from a decision of the Tribunal affirming a decision of the Commissioner to revoke her firearms licence. If not for the revocation, the licence would have expired in any event prior to the determination of the appeal. The issue before the Appeal Panel was whether time should be extended for Ms Joiner to lodge her appeal as it had been filed late.
In considering whether to extend time the Appeal Panel stated that, while Ms Joiner had a fairly arguable case on appeal, any order that could be made on appeal would be of no utility as her expired licence could not be revived or the licence period extended. The extension of time was refused and the appeal dismissed as the appeal was without practical utility as any order the Appeal Panel could make would have no practical effect. The Appeal Panel noted at [32] that the case did not raise any novel issues or issues of principle that suggested their discretion to hear the matter should be exercised because it may affect other cases.
The Commissioner acknowledges that there have been a number of matters before the Tribunal where the Tribunal has heard matters to finality following the expiry of the licences in question. In some of those cases the Tribunal has commented that, while the decision made would have no practical effect on the applicant's licence being reissued, it could be taken into account in any application by the applicant for a new licence - see, for example, Tucker v Commissioner of Police [2021] NSWCATAD 214 at [34]; Fitzgerald v Commissioner of Police [2022] NSWCATAD 315 at [58].
Recently, in Malik v Commissioner of Police, NSW Police Force [2024] NSWCATOD 2 the Tribunal, while it accepted that that a security licence cannot be granted as an outcome of the proceedings as it had expired, did not find that the expiry of the licence was a basis to characterise the proceedings as otiose or serving no practical purpose. At [31] the Tribunal stated "the practical effect of any decision of the Tribunal to affirm or set aside a revocation would be relevant to any future applications for a security licence made by the Applicant: Sawires v Commissioner of Police [2010] NSWADTAP 68".
This comment is at odds with the Appeal Panel decision in Joiner where, at [23], the Appeal Panel specifically stated with reference to comments in some Tribunal decisions that in any future application for a licence it would be appropriate for the respondent to take into account the Tribunal's decision with respect the expired licence: It is reasonable to expect that the fact that an administrative review (or indeed an appeal) is dismissed because it is of no utility, rather than on the merits, will be a factor to be considered when making any further decisions to which that dismissal is relevant.
The Appeal Panel went on to say that neither the Tribunal nor the Appeal Panel have the power to make declarations or give advisory opinions: at [25]. Similarly, in Davis v Minister for Health the Tribunal said at [45], applying what was said in Kassam v Hazzard; Henry v Hazzard [2021] NSWCA 299: It is no part of the role of this Tribunal to give advisory opinions on issues which have become hypothetical questions or to use resources resolving proceedings the utility of which is either wholly lacking or extremely limited. That would be an improper use of the Tribunal's limited resources.
The decision in Malik also appears to misread the decision in Sawires. In Sawires the Tribunal was clear that a significant factor in its decision to refuse to extend time for Mr Sawires to lodge his appeal (as in Joiner) was that, while any order setting aside the Tribunal's decision may affect any new application for a licence that Mr Sawires might make, it could have no practical effect because his licence had expired.
Mr Zeitoune argues that the revocation decision should not have been made as he has not been convicted of an offence but simply has been charged. A finding that a person is not fit and proper to hold a security licence does not depend upon a criminal conviction. Rather, it is the general conduct of the person that is relevant. Mr Zeitoune also argues that the relevance of the current proceedings to his reputation and any future application he might make mean that the proceedings are not without practical utility. I disagree. Any matter concerning Mr Zeitoune's reputation may be resolved by the outcome of the criminal proceedings he faces. However, at this stage the outcome of those proceedings is purely a matter of conjecture. Hypothetically, a finding of not guilty or a withdrawal of the charge may have an impact on Mr Zeitoune's reputation and the outcome of any application he might make for a new licence. But that possibility is simply hypothetical and not sufficient to ground a finding that the current review proceedings possess utility.
Any decision of the Tribunal made at this point in time can only be based upon existing facts. As was pointed out in Special Protection Services (NSW) Pty Limited v Commissioner of Police, NSW Police Force; Constantin v Commissioner of Police, NSW Police Force [2015] NSWCATOD 112 at [58] the Tribunal is entitled to have regard to factual findings made by it in earlier proceedings involving the same party. It does, however, have a discretion as to how much weight it gives to factual findings made in those proceedings. Any findings of the Tribunal made in these proceedings, therefore, in any future decision of the Commissioner (or the Tribunal on review) concerning Mr Zeitoune will need to be assessed in light of the actual outcome of the criminal proceedings and possibly other matters that may arise in the meantime.
In my view, the expiry of Mr Zeitoune's licence and the lack of any remedy available in these proceedings to affect that licence mean that these proceedings lack practical utility. Mr Zeitoune has not raised any broader issues of principle which would lead to a conclusion that there is utility in continuing with the current proceedings. His contention that there is general utility to the security industry in allowing his application to proceed is based upon his misunderstanding of the provisions of the Act as referred to in [10] - [15] above. They therefore carry minimal weight.
That is not to say there can never be circumstances where, despite the expiry of the licence or entitlement in question, there is still utility in the proceedings being determined. However, as these proceedings lack practical utility they are lacking in substance.

Should the proceedings be dismissed?

Having found that the proceedings are lacking in substance, the decision whether they should be dismissed is a discretionary one. It is apparent that Mr Zeitoune has a significant personal interest in the proceedings being maintained and determined. However, the fact that the proceedings lack practical utility is a significant factor weighing in the exercise of my discretion. Also important is the fact that any hearing of the review application would require the Tribunal and the parties to devote resources and incur costs in circumstances where no practical outcome can be achieved. The hearing is likely to require witnesses and, as was noted in Zaitoune v Commissioner of Police, NSW Police Force [2023] NSWCATOD 193 dealing with the Commissioner's earlier application for a stay of the proceedings, will require the parties to deal with any issues of prejudice concerning the criminal proceedings. While I note this was not a factor considered by the Tribunal in that application to be insurmountable, it does involve some complexity and therefore likely additional time and cost.
As has been highlighted in previous cases, the allocation of resources which are not commensurate to the lack of utility in the orders sought is not in keeping with the objects of the NCAT Act and the guiding principle set out in s 36 of that Act. For these reasons, the matter should be dismissed.

Order 1. The application for administrative review is 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: 08 May 2024

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