AVS GROUP OF COMPANIES PTY LTD v COMMISSIONER OF POLICE [2010] NSWCA 81 (15 April 2010)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2010/81.html

CATCHWORDS:
ADMINISTRATIVE LAW – administrative tribunals – procedure – distinction between stay of orders and order temporarily reversing administrative decision – [Administrative Decisions Tribunal Act 1997] (NSW), s 60(2)
PROCEDURE – judgments and orders – stay of orders – distinction between stay of orders and order temporarily reversing reviewable decision
STATUTORY INTERPRETATION – purposive approach – statutory derogation from procedural fairness – tribunal obliged to prevent disclosure when hearing application for review of administrative decision – whether obligation applies to hearing of application for ‘stay’ of administrative decision pending review – [Security Industry Act 1997] (NSW), s 29(3)
WORDS & PHRASES – “criminal intelligence report” – “otherwise affecting the operation of the decision under review”

Headnote

On 23 July 2009, the Commissioner of Police revoked licences held by the applicants under the Security Industry Act 1997 (NSW). The applicants lodged an application within the Administrative Decisions Tribunal (“the Tribunal”) for review of the revocation decision, as well as for a stay of the decision under s 60(2) of the Administrative Decisions Tribunal Act 1997 (NSW) (“the ADT Act”), pending the determination of the review. On 30 July, Deputy President Hennessy heard the stay application, declined to grant it, and set down the hearing of the review application for 17 August. During the hearing of the application, her Honour admitted and took into consideration a confidential exhibit, involving “criminal intelligence reports or other criminal information”, which was not provided to the applicants. This course of action was taken in accordance with the obligations imposed upon the Tribunal by s 29(3) of the Security Industry Act, which applied in circumstances where the Tribunal was “determining an application for review of any decision … to revoke a licence.”

On 4 August, the applicants lodged an application to appeal to the Appeal Panel against the refusal of the stay, on the basis that her Honour had erred in holding that s 29(3) applied to the hearing of the stay application. The appeal was allowed on 11 August, and the matter remitted to Deputy President Hennessy, who on 13 August granted the stay.

On 12 August, the Commissioner filed a summons in the Common Law Division seeking leave to appeal against the Appeal Panel’s decision. On 16 December Rothman J quashed the decision of the Appeal Panel. The applicants now seek leave to appeal from the decision of Rothman J.

The issue for determination on appeal was whether the obligation upon the Tribunal imposed by s 29(3) of the Security Industry Act applies to the hearing of an application for a stay of the Commissioner’s decision.

The Court held, dismissing the appeal:

1. An order in the nature of a ‘stay’ granted pursuant to s 60(2) of the ADT Act is a decision made in the course of review proceedings, which will affect, on a temporary basis, the operation of the reviewable decision. It is thus distinguishable from the common usage of a stay, granted to preserve the status quo or the subject matter of an appeal, pending a final determination of that appeal: [16], [19]–[21], [95].

McBride v Walton (unreported, NSWCA, 27 August 1993), referred to.

2. Neither the specific language of s 29(3), nor its statutory context or purpose, supports a construction that would render the determination of a ‘stay’ application a discrete and separate function to that of determining an application for review of a reviewable decision: [21]–[25], [122], [126], [129], [146], [166]–[167].

Commissioner of Police v Gray [2009] NSWCA 49; 74 NSWLR 1, referred to.

3. Section 29(3) accordingly applies to the hearing of an application for an order that has the effect of temporarily reinstating a licence under the Security Industry Act that has been revoked when that reinstatement is made, pending the determination by the Tribunal of an application for review of that revocation: [26], [179].