AVS Group Pty Ltd v Commissioner of Police; AVS Group Australia Pty Ltd v Commissioner of Police [2015] NSWSC 1531 (16 October 2015)

Last Updated: 16 October 2015

Supreme Court New South Wales

Case Name:	AVS Group Pty Ltd v Commissioner of Police; AVS Group Australia Pty Ltd v Commissioner of Police
Medium Neutral Citation:	[2015] NSWSC 1531
Hearing Date(s):	12 August 2015
Decision Date:	16 October 2015
Jurisdiction:	Common Law
Before:	Hall J
Decision:	In each of proceedings 2014/308869 and 2014/308878: (1) Order made that the application for leave to appeal be heard separately from the appeal. (2) Unless written application is made to my Associate within seven days for a different order, order the plaintiffs to pay the defendant’s costs of the application heard on 12 August 2015.
Catchwords:	PROCEDURE – civil – application for leave to appeal from a decision of the Appeal Panel of the New South Wales Civil and Administrative Tribunal under s 83(1) of the Civil and Administrative Tribunal Act – application by defendant to have the question of leave heard and determined separately from a hearing on the merits of the appeal – issues arising concerning Notices to Produce served by plaintiffs seeking particular documents which were not disclosed to them because of the operation of ss 15(6) and 29(3) of the Security Industry Act 1997 – held that plaintiffs not entitled to access the documents sought – documents not relevant to issues arising in the appeal – decision of Appeal Panel primarily concerned with interpretation of the relevant provisions – held that leave should be determined separately from the substantive appeal – plaintiffs had not established that a grant of leave was more probable than not – length of proceedings before Appeal Panel and likely length of hearing in this Court also relevant to determination that leave should be heard separately
Legislation Cited:	Civil and Administrative Tribunal Act 2013 Civil Procedure Act 2005 Security Industry Act 1997
Cases Cited:	AVS Group Australia Pty Ltd v Commissioner of Police, NSW Police Force [2012] NSWADT 1 Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 Coulter v The Queen (1998) 164 CLR 350
Category:	Procedural and other rulings
Parties:	AVS Group of Companies Pty Ltd (First Plaintiff in 2014/308869) Peter Sleiman (Second Plaintiff in 2014/308869) AVS Group Australia Pty Ltd (First Plaintiff in 2014/308878) Tony Sleiman (Second Plaintiff in 2014/308878) Commissioner of Police, NSW Police Service (Defendant in 2014/308869 & 2014/308878)
Representation:	Counsel: KG Oliver (Plaintiffs) T Lynch SC; DA Rao (Defendant) Solicitors: Unrepresented (Plaintiffs) Crown Solicitor’s Office (Defendant)
File Number(s):	2014/308869; 2014/308878

JUDGMENT

Proceedings for Leave to Appeal

1. Proceedings were instituted by the plaintiffs in this Court pursuant to s 83(1) of the Civil and Administrative Tribunal Act 2013 in which they seek orders for leave to appeal from the whole of the decision of the Appeal Panel of the New South Wales Civil and Administrative Tribunal.
2. Interlocutory issues have arisen concerning the disposition of the proceedings.
3. Following the institution of the proceedings the defendant, the Commissioner of Police (“the Commissioner”) made an application seeking an order that the question of leave be heard and determined separately from a hearing on the grounds of appeal. The plaintiffs, in effect, responded by serving on the Commissioner a Notice to Produce documents which were found by the Tribunal and Appeal Panel to be protected from disclosure. The documents (“the undisclosed documents”) were found to be within the ambit of the protective provisions of the Security Industry Act 1997 (NSW) (“SI Act”). Accordingly, the plaintiffs have not, prior to the present proceedings, had any entitlement to access those documents.
4. As noted above, an issue has arisen as to whether or not the application for leave should be heard separately or together with issues that would arise on the appeal in the event that leave was granted.
5. On 17 March 2015, the Court directed that the defendant was to file and serve:

“(a) A written outline of his submissions in support of directions, proposed by him, that the question of leave to appeal in each proceeding be separately heard and determined prior to any production of documents pursuant to the plaintiff’s notices to produce filed 4 February 2014 and
(b) Any evidence upon which he proposed to rely in support of those proposed directions.”

6. Further directions were given for the plaintiffs to file and serve a written outline of submissions and any evidence relied upon in the proceedings.

The Parties

7. As the title to this judgment reflects there are two proceedings. In proceedings 2014/308869 AVS Group of Companies Pty Ltd (the first plaintiff) and Peter Sleiman (the second plaintiff), seek leave to appeal in respect of a decision of the Appeal Panel of the Tribunal given on 23 September 2014. The plaintiffs to those proceedings proceed by way of Amended Summons seeking leave to appeal filed on 8 December 2014.
8. In proceedings 2014/308878, the plaintiffs, AVS Group Australia Pty Ltd (the first plaintiff) and Tony Sleiman (the second plaintiff) also seek leave to appeal in respect of the decision of the Appeal Panel of the Tribunal delivered on 23 September 2014. The plaintiffs in those proceedings proceed by way of Amended Summons seeking leave to appeal filed on 8 December 2014.
9. By way of background the proceedings arise out of decisions made by the defendant to revoke certain licences that the Commissioner had granted under the SI Act.
10. The proceedings brought by plaintiffs, AVS Group of Companies Pty Ltd (“AVSGC”) and Peter Sleiman concern a Master Security Licence that had been issued to AVSGC, with Peter Sleiman as the “nominated person” and a personal licence that had been issued to Peter Sleiman.
11. The licence issued to AVSGC was issued on 28 April 2007 with an expiry date of 28 April 2012. On 23 July 2009 the Commissioner served a notice revoking the licences held by AVSGC and Peter Sleiman.
12. The second set of proceedings, brought by AVSGA and Tony Sleiman, concern a licence issued to AVSGA with Tony Sleiman as the ‘nominated person.’ The licence issued on 21 October 2006 and expired on 21 October 2011. It was revoked on 13 August 2009.
13. Proceedings by AVSGC and Peter Sleiman were instituted in the New South Wales Civil and Administrative Tribunal for review of the Commissioner’s decision to revoke the licences, such proceedings having been filed on 30 July 2009. An application was also made by AVSGA and Tony Sleiman for review of the decision to revoke AVSGA’s licence, those proceedings having been commenced on 13 August 2009.
14. Subsequently, a number of applications were made, including an application seeking a stay of the notice of revocation of the licences held by AVSGC and Peter Sleiman. Proceedings were also commenced in this Court and in the Court of Appeal of New South Wales.
15. The proceedings were heard by the Tribunal between 8 March 2011 and 30 June 2011.
16. On 10 January 2012 the Tribunal delivered its decision affirming the Commissioner’s decision to revoke the three licences in question: AVS Group Australia Pty Ltd v Commissioner of Police, NSW Police Force [2012] NSWADT 1.
17. Two Notices of Appeal were filed in the Tribunal on 23 January 2012.
18. The appeals were heard by the Appeal Panel over six days between 14 February and 25 August 2014. In the appeal proceedings Mr Kyle Oliver of counsel appeared on behalf of the appellants and Mr T Lynch SC of counsel appeared on behalf of the Commissioner.

The Appeal Panel’s Decision

19. The Appeal Panel of the Tribunal delivered its decision on 23 September 2014. It dismissed both appeals.
20. The Reasons for Decision of the Appeal Panel, set out in 476 paragraphs, are detailed and extensive. In paragraph 18 the Appeal Panel observed:

“We have decided, after careful consideration, that these appeals must be dismissed. In our lengthy reasons we canvas a significant number of questions of principle, most of which have to do with the meaning of key provisions of the SI Act.”

21. Paragraph 44 of the decision contains a table of contents listing the questions considered by the Appeal Panel.
22. At [42] of its decision the Appeal Panel explained:

“Our reasons are unusually lengthy. In part, this is because, as just indicated, the Grounds of Appeal and the submissions supporting them were unusually lengthy. But it is also attributable in large measure to the fact that the provisions of the SI Act on which the dispute between the parties has principally focused – namely, sections 15(6), 15(7) and 29(3) and (to a lesser extent) section 5 – lack clarity in a number of important respects. The first three of these provisions have the effect of preventing the Tribunal from affording complete procedural fairness to licence applicants or holder who apply for review to a decision by the Commissioner denying them a licence or revoking a licence that they already hold. These parties are denied the opportunity to know the case being brought against them and to put evidence and argument in response before the Tribunal.”

23. Earlier, at [40], the Appeal Panel’s decision contains an explanation as to the approach adopted by it in dealing with the many grounds of appeal raised by the plaintiffs. The Appeal Panel stated that it was necessary to not proceed with the Grounds of Appeal in the terms or in the order in which they were set out in the Further Amended Notices. The reason for this was stated to be that the “questions of law” which the notices identified were formulated in a manner which the Appeal Panel found “... to be unduly lengthy, occasionally repetitive and, at times not easily susceptible of interpretation”. The Appeal Panel noted that there were twenty-six numbered Grounds of Appeal in AVSGC’s appeal and twenty-seven in that of AVSGA.
24. Against that background the Appeal Panel segmented or divided the substantive issues arising in the appeals under a number of subheadings (detailed in [44] of the Appeal Panel’s decision).
25. The Appeal Panel at [45] noted that the appeal proceedings, as accepted by the parties, by virtue of the operation of ss 26(1A), 15(6) and 15(7) of the SI Act were to be construed as applying to the determinations by the Commissioner as to the revocation of a licence as well as to the granting of a licence.
26. The Appeal Panel then observed:

“46 In broad terms, sections 15(6), 15(7) and 29(3), when read in conjunction with sections 15(5) and 26(1A), had the following effect: (a) they defined a category of material, which we will call 'relevant Criminal Information', to which the Commissioner might have regard for the purpose of determining whether a licence applicant or holder or (in the case of an application for a master licence) a 'close associate' of an applicant or holder was a fit and proper person to hold a licence under the Act; (b) they entitled the Commissioner to decline to give reasons for refusing or revoking a licence if the act of so doing would 'disclose the existence or content' of any relevant Criminal Information to which he had had regard for this purpose; and (c) they imposed two obligations on the Tribunal that applied when the Tribunal was determining an application for review of any decision to refuse to grant a licence or to revoke a licence that was made on the ground of the applicant not being a fit and proper person.
47 These obligations were that, in the absence of approval by the Commissioner, the Tribunal (i) was not to 'disclose the existence or content' of any 'criminal intelligence report or other criminal information referred to in section 15(6)' in the reasons for its decision 'or otherwise' and (ii) was required, in order to prevent the disclosure of any such report of other criminal information, to 'receive evidence and hear argument in the absence of the public, the applicant for administrative review, the applicant's representative and any other interested party'.
48 The statutory description of the material to which we are giving the shorthand name 'relevant Criminal Information' appears in section 15(6) of the SI Act. It comprises the phrase that commences with the words 'criminal intelligence report or other criminal information' and concludes at the end of section 15(6). We will use the broader phrase 'Criminal Information' to mean any 'criminal intelligence report or other criminal information'.
49 According to this terminology, 'Criminal Information' is not 'relevant Criminal Information' unless it satisfies the following criteria:-

1. It is held in relation to the licence applicant or holder; and
2. It either -

(a) is relevant to the activities carried out under the relevant class of licence, or
(b) causes the Commissioner to conclude that improper conduct is likely to occur if the licence is not refused or revoked, or
(c) causes the Commissioner not to have confidence that improper conduct will not occur if the licence is not refused or revoked.

50 In line with terminology employed in the Appellants' submissions, we reserve the phrase 'section 15(6) material' for relevant Criminal Information that satisfies a further criterion stated in section 15(6): namely, that it is material to which 'the Commissioner' may have regard for the 'section 15(6) purpose' of 'determining whether an applicant is a fit and proper person to hold the class of licence sought by the applicant'. (In this statement, our reasons for putting 'the Commissioner' in quotation marks will be explained shortly.)”

27. In general terms the Appeal Panel proceeded with a consideration of the Grounds of Appeal and the submissions made by counsel on behalf of the plaintiffs by considering the proper meaning or construction of ss 15(6), 15(7), and 29(3), in conjunction with ss 15(5) and 26(1A). These are key provisions that define (in particular by the provisions of s 15(6)) the information within the Commissioner’s control relevant to his decisions that was not available to the plaintiffs in accordance with s 29(3).
28. The Appeal Panel, in particular, considered the effect of the statutory criteria relevant to determining the issue of “... a fit and proper person” within s 15(6) and s 29(3).
29. The Appeal Panel concluded at [76] that, in certain specified respects, the Tribunal below had adopted an unduly broad construction, as for example, on the scope of Criminal Information. Wherever such errors of construction were determined to have occurred, the Appeal Panel expressly stated that when reviewing the Tribunal’s determinations as to whether specific items of evidence constituted s 15(6) material, the Appeal Panel had paid attention to the question as to whether any such error in describing, for example, the scope of Criminal Information, had any impact upon the Tribunal’s ultimate determination: See e.g. at [63].
30. The Appeal Panel accordingly considered the issues and submissions raised by the appellants in relation to the above provisions in the process of determining whether error had occurred in the Tribunal’s decision and did so in particular under relevant subheadings, including the following:

● The criteria for determining whether Criminal Information is held in relation to a licence applicant or holder: [65]-[92].
● Whether the Tribunal’s obligations regarding the concealment of information applied to “putative” section 15(6) material: [93]-[96].
● Whether the Tribunal’s obligations regarding the concealment of relevant Criminal Information can apply only to information in this category to which the Commissioner actually had regard: [97]-[113].
● Whether s 15(6) material can include any material whose existence and contents have been known at all relevant times to the applicant: [114]-[118].
● Whether, and if so in what circumstances, material bearing on the question of “close association” may be s 15(6) material: [119]-[145].
● Whether s 15(6) material falls within s 15(7) and/or s 29(3) when the purpose of its use is not that of determining whether a licensee is fit and proper to hold a licence: [146]-[188].
● The meaning of “disclose the existence of” in s 29(3): [199]-[233].

31. Following its consideration of issues arising in relation to each of the abovementioned subheadings (including in particular the issues of construction), the Appeal Panel turned to an examination of the Tribunal’s classification of material as s 15(6) material and whether any classifications by it were incorrect in law. In embarking upon that exercise the Appeal Panel expressly relied upon its “rulings” set out in the abovementioned paragraphs of its decision in relation to aspects of s 15(6) and 29(3). In that respect the Appeal Panel stated:

“234 Appeal Ground 11, as we interpret it, raised this broad question. In its formulation, specific reference was made to Confidential Exhibits C6B (to the extent that it was disclosed to the Appellants) and C18 (which was disclosed in full).
235 We agree with the Appellants that this is a question with which we must deal in this appeal. The Commissioner submitted that because we are bound by section 29(3)(b) of the SI Act, any hearing at which the content of material that the Tribunal had held to fall within section 15(6) would be given consideration should take place (unless he approved otherwise) in the absence of the Appellants, their representatives and the public. The Appellants assented to this proposition. On 25 August 2014, a hearing of this nature took place.
236 In determining whether the items of documentary material that were tendered by the Commissioner, admitted into evidence by the Tribunal, classified as section 15(6) material and accordingly not disclosed to the Appellants (except, as just mentioned, for parts of Exhibit C6B and for Exhibit 18) were correctly so classified, we have taken into account the rulings regarding the following aspects of section 15(6) and 29(3) set out earlier in this decision: (a) the meaning and scope of 'Criminal Information'; (b) the criteria for determining whether Criminal Information is 'held in relation to' a licence applicant or holder; (c) whether section 29(3) can apply only to material to which the Commissioner actually had regard in making his determination: (d) whether, and if so in what circumstances, material bearing on the question of 'close association' may be section 15(6) material.”

32. The Appeal Panel stated at [237] that having examined the Tribunal’s classification of the material, there were two items, each of which form part of Exhibit C6B which should not have been so classified. Those documents were discussed by the Appeal Panel at [238]-[239]. For the reasons given in those paragraphs the Appeal Panel stated that both of the documents should have been disclosed to the Appellants: at [240]. The Appeal Panel stated:

“240 For these reasons, both of these items of admitted evidence should have been disclosed to the Appellants. But in our judgment this error on the Tribunal's part is insufficient to justify appellate interference. Our reasons are as follows: (a) this evidentiary material does not cast any light on the questions at issue in these proceedings; (b) no reference was made to it in the Tribunal's reasons; (c) accordingly, the Appellants did not suffer any prejudice on account of its having been admitted into evidence without being disclosed to them.
241 We turn now to the Appellants' arguments based on the content of the material within Confidential Exhibit C6B that was disclosed to the Appellants, despite being held to be section 15(6) material, following approval of disclosure by the Commissioner. Because these arguments were made within a section of the Appellants' written submissions marked 'Confidential', it is appropriate that the ensuing discussion of them should be the subject of an order under section 75(2) of the ADT Act prohibiting its release to the public.”

33. Paragraphs [242]-[249] of the Appeal Panel’s decision were stated to be “Not for publication”.
34. The Appeal Panel concluded:

“250 For the foregoing reasons, the Appellants’ arguments relating to the disclosed part of Exhibit C6B do not establish ground of appellate interference with the Tribunal’s decision.”

35. The Appeal Panel then turned to Confidential Exhibit C18. It was noted that the appellants’ arguments in relation thereto were marked confidential and that it was not appropriate to discuss the same. Accordingly, paragraphs [252]-[260] were marked as “Not for publication”.
36. In [261] the Appeal Panel stated that for the reasons given “... the Appellants’ arguments relating to Exhibit C18 do not establish grounds for appellate interference with the Tribunal’s decision”.
37. The Appeal Panel concluded:

“262 Our decision with regard to Appeal Ground 11 is therefore that while it has been made out to a limited extent, it does not provide a basis for disturbing the Tribunal’s decision.”

38. The Appeal Panel then proceeded to deal with other Grounds of Appeal including the constitutional validity of s 29(3) at [263]-[323].
39. The Appeal Panel set out its conclusions in relation to both appeals at [473]-[476].

Grounds of Appeal

40. In this Court, in the AVSGA and Tony Sleiman proceedings, 16 grounds of appeal are set out in the Summons. The Summons in the AVSGC and Peter Sleiman proceedings contains 15 grounds. The appeal grounds are detailed and I do not consider it to be necessary to reproduce them here.
41. In the Written Submissions filed for the plaintiffs the appeal grounds were summarised as follows:

“25 The errors of law in respect of which the appellants seek leave to appeal include:

(a) that the Appeal Panel affirmed and/or applied legally erroneous tests for classification of relevant material as criminal intelligence that the ADT and NCAT were required to keep secret from the appellants and thereby:

(i) unlawfully denied the appellants procedural fairness; and/or
(ii) erroneously held that the ADT’s denial of procedural fairness to the appellants was lawful when it was not; and

(b) that the Appeal Panel held “that it was not open to the [appellants’ to seek...by means of an internal appeal, relief against...errors of law that, by reason of the operation of s 29(3) of the SI Act, the [appellants] were unable to identify, but which might nonetheless be discernible to the Appeal Panel” and thereby “failed or refused to exercise jurisdiction.”

Written Submissions on a Separate Determination of Leave to Appeal

42. In the written submissions for the Commissioner dated 21 April 2015, it was noted at [5] that commonly there is no utility in separating a consideration of the question of leave and proposed grounds of appeal and that it is expedient that the application for leave be considered along with the proposed grounds of appeal.
43. However, it was submitted that the present applications for leave are not made in a “common case”.
44. The submission for the Commissioner was that the application for leave should be determined, in the first instance, separate from a hearing of the grounds sought to be relied upon in the proposed appeal.
45. It was submitted that relevant considerations to the grant of leave included the passage of time since the original decisions by the Tribunal were made and the commencement of the present appeals, the degree to which the proceedings below had been protracted by conduct of the plaintiffs, and what was said to be the absence of utility for any appeal in circumstances where the licences previously held by the plaintiff companies and Peter Sleiman had expired and could not be restored. The Commissioner submitted that in the circumstances a grant of leave to appeal is “not sufficiently likely”
46. Mr Oliver in his detailed submissions of 27 May 2015, addressed the question of a separate hearing of the leave applications, but in doing so introduced a contention that the plaintiffs required access to what was referred to as the “undisclosed documents” which had been ruled as within the scope of s 15(6) and s 29(3) of the SI Act. Without the documents, it was contended, the plaintiffs are unable to comply with UCPR 50.14(1)(b) and 50.14.(1)(c). The submissions in [10] identified the “undisclosed documents”. At [11] it was submitted that the reason the plaintiffs did not have access to them was that the Appeal Panel held that access by the plaintiffs to the undisclosed documents would disclose the existence and/or content of “any criminal intelligence report or other criminal information held in relation to” one or more of the plaintiffs. It was also there noted that s 29(3) of the Act prohibited NCAT from disclosing the existence or content of criminal intelligence except with the approval of the Commissioner, and that the Commissioner had, as at the date of the submissions, refused to approve disclosure to the plaintiffs of the undisclosed documents.
47. The plaintiffs submitted that the question of access to the undisclosed documents should be determined first, before the Commissioner’s application to separate leave from the substantive hearing. This was said to be because the undisclosed documents were likely to be highly probative to determining whether the defendant’s submissions, that separating the leave application from the remainder of the appeal would save resources and that the case against leave being granted was overwhelming, were correct. It was submitted that without access to the undisclosed documents, the plaintiffs would not be given a genuine opportunity to present their best case as to whether any aspects of the Appeal Panel’s decision were vitiated by errors of principle and whether any substantial injustice had been occasioned.
48. It was submitted for the plaintiffs that the Commissioner had not put forward any persuasive case as to why their proposed course should be followed. In particular it was contended that the Commissioner’s argument that the undisclosed documents have no apparent relevance to the question of leave to appeal is of itself irrelevant, given that the plaintiffs are, on the basis of their submissions, unable to identify the relevance of the documents without access to them.
49. The plaintiffs submitted that the internal appeal to the Appeal Panel of NCAT should not be characterised as an appeal to a second appellate court such that the proceedings should not be entertained because NCAT is not a court of record.
50. The plaintiffs also submitted that the proposed appeals are not without utility simply because the licences have expired. It was argued that in these proceedings reputation is at stake and the utility of the proceedings lies partly in the opportunity to vindicate the plaintiffs’ reputations. Additionally, it was said that findings in an appeal would have a bearing on future applications for licences made by the plaintiffs in that the defendant would not be able to rely upon historic adverse findings to refuse the applications.
51. Finally, the plaintiffs submitted that this Court, at present, could not be satisfied that any resources would be saved by a separate hearing on the leave question. This submission was linked to the plaintiffs’ lack of access to the undisclosed documents. It was submitted that if the plaintiffs were granted access to the undisclosed documents they may even consent to the separation of leave from the substantive appeal. Without access, however, they could not determine certain questions which would bear on their position on the leave application and, it was submitted, nor would the court be able to make certain determinations.

Service of a Notice to Produce

52. The plaintiffs served the Commissioner with two Notices to Produce, each dated 3 February 2015.
53. The Notice to Produce relating to the AVSGC proceedings was in the following terms:

“You are required to produce the following documents or things to the court:
...
6 A copy of the entire and unredacted statement of the reasons for the decision of the Administrative Decisions Tribunal (AVS Group Australia Pty Limited v Commissioner of Police, NSW Police Force [2012] NSWADT 1) that was the subject of the appeal to the Appeal Panel in the proceedings below.
7 Copies of each of the confidential exhibits that were before the Administrative Decisions Tribunal (the “ADT”) for the purpose of its determination of ADT proceedings number 093202 AVS Group of Companies Pty Ltd & Peter Sleiman v Commissioner of Police (the “primary AVSGC proceedings”), the disclosure of which by the ADT or the Tribunal to the plaintiffs you have not approved pursuant to s 29(3) of the SI Act.
8 Copies of the complete and unredacted documents identified as:

a. “List of Exhibits to 22.06.2011” in respect of the primary AVSGC proceedings;
b. “List of Exhibits to 17.06.2011” in respect of proceedings number 093216 AVS Group Australia Pty Ltd & Tony Sleiman v Commissioner of Police; and”
c. “Commissioner’s List of Exhibits (for joint hearing 29 and 30 June 2011)”
that were provided by you to the Appeal Panel in the course of the hearing of the proceedings below.

9 Copies of the entire and unredacted transcripts of all hearings (including interlocutory hearings that were conducted in the primary AVSGC proceedings, and which are in your possession, custody or power, being transcripts of hearings at which the plaintiffs and their legal representatives were not present.
10 Copies of any written submissions that were provided to the ADT in, or in connection with, the primary AVSGC proceedings, the disclosure of which by the ADT or the Tribunal to the plaintiffs you have not approved pursuant to s 29(3) of the SI Act.
11 A copy of any statement of the reasons for the decision that was the subject of the application for review in the primary AVSGC proceedings, being a statement of reasons that you lodged with the ADT, but did not serve on, or otherwise provide to, the plaintiffs.”

54. The Notice to Produce in relation to the AVSGA proceedings is in similar terms with the exception of paras [8] and [11], which read:

“8 Copies of the complete and unredacted documents identified as:

a. “List of Exhibits to 17.06.2011” in respect of the primary AVSGA proceedings; and
b. “Commissioner’s List of Exhibits (for joint hearing 29 and 30 July 2011)” ...

...
11 A copy of the statement of the reasons for the decision that was the subject of the application for review in the primary AVSGA proceedings being the further statement of reasons that is referred to in paragraph [213] of the published reasons for the decision in the proceedings below, and which you lodged with the ADT, but did not serve on the plaintiffs.”

55. It was submitted for the plaintiffs at [12] of their written submissions that they were:

“(b) unable to determine which, if any, of the undisclosed documents are documents that they wish to be considered at the hearing of their proposed appeals, and which they are consequentially required to file and serve to UCPR r 50.14(1)(c).”

56. The written submissions record the fact that the Notice to Produce documents had been served on the Commissioner on 4 February 2015. The Notices called for production of the “undisclosed documents”.
57. It was submitted on behalf of the plaintiffs that the prohibition under s 29(3) of the SI Act only applies to NCAT and not to the Supreme Court. In those circumstances, it was submitted, there was an obligation on the Commissioner to produce the undisclosed documents to the Court.

“The prohibition on disclosure of criminal intelligence in s 29(3) of the SI Act applies only to NCAT. It does not apply to the Court. Consequently, the Commissioner’s obligation to produce the undisclosed documents to the Court, and the appellants’ entitlement to inspect the undisclosed documents once they are produced, will turn on the application of general law principles, including, in particular, the principles to govern claims for public interest immunity.” (Plaintiffs’ Written Submissions at [15])

58. It was further submitted:

“16. The Court of Appeal has held that the class of material that falls within the statutory definition of ‘criminal intelligence’ in s 29(3) of the SI Act is not limited to material that would found a legitimate claim for public interest immunity.
17. Consequently, it cannot be assumed that the appellants will not be granted access to any or all of the undisclosed documents.”

59. As previously noted, without access to the undisclosed documents it was argued the plaintiffs would be required to present their case on appeal:

“... without the benefit of access to any of the undisclosed material that they have issued the Commissioner with notice to produce and without the Court having determined whether they are entitled to the benefit of such access.” (Plaintiffs’ Written Submissions at [19])

60. The question was raised as to whether procedural directions as proposed by the Commissioner, in those circumstances, accord with the “dictates of justice” and it was contended that they fall to be determined in accordance with the provisions of the Civil Procedure Act 2005: Plaintiffs’ Written Submissions at [20].
61. The written submissions for the plaintiffs at [22]-[32] then set out the reasons as to why the course proposed by the Commissioner would not accord with the “dictates of justice”. I do not here reproduce all of those submissions, although, of course, I have given close consideration to them.

The Undisclosed Documents and the Grounds of Appeal

62. The plaintiffs sought to establish that the question of access to the undisclosed documents raises a matter of a preliminary nature that is essential to the fair and proper disposition of their leave to appeal proceedings in this Court. However, before any consideration arises as to whether the undisclosed documents could be or are protected by public interest immunity, the following matters must be noted:
    • (1) The grounds of appeal, several of which are said to raise procedural fairness issues, depend upon the statutory construction of the relevant provisions of the SI Act (including ss 15(6) and 29(3)), rather than the classification of individual documents (the undisclosed documents).
    • (2) Unless the undisclosed documents are relevantly related to or connected with any proposed ground or grounds of appeal, there would be no basis upon which those documents would be properly admissible in appeal proceedings.
    • (3) The present proceedings are limited to questions of law: s 83(1) Civil and Administrative Tribunal Act. Accordingly, as difficult as it may be, there would be a need for the plaintiffs to establish, having regard to the proposed grounds of appeal, how any documents contained in the undisclosed documents could possibly be relevant in establishing pleaded grounds as to a “question of law”.

Access to the Undisclosed Documents

63. The preliminary matter raised by the plaintiffs concerning the “undisclosed documents” is not one that has been raised by way of any formal application made by way of Notice of Motion. It has arisen in circumstances in which the Notice to Produce was served on the Commissioner to produce the “undisclosed documents”. The plaintiffs have foreshadowed that, if the defendant produces the documents, they will make application for access to those documents.
64. Accordingly, in this way the plaintiffs have in effect sought to have the Notice to Produce question (and access to the undisclosed documents) determined before the defendant’s application for a separate determination of leave to appeal is heard.
65. Before examining the submissions made on behalf of the plaintiffs as to their asserted need or entitlement to the “undisclosed documents” it is necessary to restate a number of matters referred to previously:
    • (1) The present proceedings have been brought pursuant to s 83(1) of the Civil and Administrative Tribunal Act 2013 seeking leave to appeal the decision of the Appeal Panel delivered on 23 September 2014.
    • (2) An appeal under that Act, as noted above, is only permitted “on a question of law”: s 83(1).
    • (3) The Administrative Decisions Tribunal ruled that the undisclosed documents were within the ambit of s 29(3) of the SI Act. The Appeal Panel, having determined the proper construction of ss 15(6) and 29(3) of the SI Act, also held that the undisclosed documents (with the exception of two particular documents) all fell within the ambit of those provisions. Accordingly, with that ruling and having regard to the provisions of s 29(3) the plaintiffs had, and have, no right or entitlement in the Tribunal or in the Appeal Panel proceedings to access the undisclosed documents.
    • (4) The plaintiffs, however, for the purposes of the appeal proceedings brought by them in this Court, ultimately seek access to the documents in circumstances in which s 29(3) of the SI Act applied to the Appeal Panel proceedings but does not apply to the appeal proceedings before this Court.
    • (5) The plaintiffs have not identified precisely how the undisclosed documents are relevant to the Grounds of Appeal pleaded in the Amended Summons. That, of course, is not surprising and is to be taken to be a result, at least in part, of the fact that the Appeal Panel has ruled that the documents in question fall within the ambit of the provisions of s 15(6).
66. Before determining the issues arising from the service of the Notice to Produce, it is necessary to say something more about the Appeal Panel proceedings, the issues that fell for determination by the Appeal Panel and the decisions and rulings made.
67. The issues that were litigated and determined by the Appeal Panel focussed upon criteria specified in s 15(6) of the SI Act (and the provisions of s 29(3)) by which a determination was to be made as to whether the documents were within or beyond the ambit of those provisions. The submissions of the parties to the Appeal Panel on such questions accordingly were directed to the nature and terms of the statutory criteria by which a determination could be made as to whether the undisclosed documents fell within the provisions of s 15(6).
68. The Tribunal, of course, had made a ruling that all of the documents in question claimed by the Commissioner to be within s 15(6) were protected from disclosure by virtue of s 29(3). The Appeal Panel examined the basis upon which the Tribunal reached that decision including, importantly, its interpretation of the statutory criteria specified in s 15(6).
69. Given the terms of s 15(6) and s 29(3), several of the Grounds of Appeal relied upon before the Appeal Panel were necessarily confined to challenging the tests that had been employed by the Tribunal in determining whether the undisclosed documents fell within the provisions of s 15(6). As the Appeal Panel’s decision records, the plaintiffs were successful in establishing that certain of the Tribunal’s conclusions, in particular respects were erroneous. As has been mentioned, in each case where such error was established, the Appeal Panel proceeded to examine the question as to whether any such error had affected or impacted upon the Tribunal’s conclusion when it came to the classification of the particular documents in question. The Appeal Panel concluded that no error had any influence or effect on the correctness of the Tribunal’s rulings in respect of the undisclosed documents in question.
70. Against that background, in the proceedings brought by the plaintiffs in this Court, a question arises as to whether there is any identified and proper basis upon which this Court should now entertain argument upon an application by the plaintiffs for access to the undisclosed documents produced in answer to the Notice to Produce.
71. If such a basis could be established it is reasonable to proceed upon the assumption, for the purpose of this judgment, that it would be highly likely that access to the documents would be opposed on public immunity principles. Indeed, I understood Mr Oliver to acknowledge the likelihood that public interest immunity principles would arise in the proceedings in this Court. As discussed below, those principles may be informed by the very existence of the provisions of ss 15(6) and 29(3) of the SI Act.
72. However, I return to the point earlier mentioned, namely, that this Court would not entertain hearing an application for access to the undisclosed documents unless the plaintiffs could establish a basis upon which there was an established need or entitlement in the plaintiffs to have access to the documents for the purposes of supporting the Grounds of Appeal which assert errors on questions of law.
73. I do not consider that the plaintiffs have addressed or established a basis or bases for a conclusion that the undisclosed documents relate to any grounds or issues arising in the appeal proceedings. As I have indicated, the relevant proceedings in the Tribunal and the Appeal Panel, and the issues raised in them, did not and could not, involve or turn upon the plaintiffs or their legal advisers having access to the undisclosed documents.
74. The plaintiffs’ specific purpose in serving the Notice to Produce has not been identified and is entirely speculative. This is so, firstly, by reason of the fact that it has not been established that the undisclosed documents could be relevant to what are, in the present proceedings, in essence, issues of statutory construction as addressed by the Appeal Panel in relation to the provisions of s 15(6). Secondly, apart from issues of statutory construction concerning the provisions of s 15(6) and 29(3) of the SI Act, there is no other basis established in the present application for a finding or a conclusion that the Appeal Panel’s affirmative finding as to the classification of particular documents under s 15(6) (that is, the undisclosed documents) was erroneous.
75. The essence of the grounds on procedural fairness and the submissions for the plaintiffs in the present proceedings, was that the inspection of the undisclosed documents, if permitted, may reveal error in the Appeal Panel’s classification of the undisclosed documents. That submission rises no higher than a theoretical possibility. Such a possibility, in the context of the present cases, is as I have indicated, purely speculative.

Separation of Leave Determination from Grounds of Appeal

76. It was plain from the way in which the submissions at the hearing of the application were put that the issue of whether access would be granted to the undisclosed documents would have some impact on the plaintiffs’ position in relation to the application and the future conduct of the appeal. As noted above, in oral submissions, Mr Oliver noted that if the plaintiffs were granted access to examine the documents they ‘might very well agree that there should be a separate hearing on the question of leave’ and gave a number of reasons why this may be so, depending on the contents of the documents. In that sense, the plaintiffs sought to have the issue of access determined before the question of whether the leave application should be separated from the substantive appeal. Nonetheless, detailed submissions were made by the plaintiffs in relation to the application and in opposition to the course proposed by the defendant.
77. I have determined for the reasons stated above that no order as to access should be made in relation to the undisclosed documents. On that basis I determine the application to separate the leave question from the main hearing on the assumption that the plaintiffs will not have the access they seek to the undisclosed documents.
78. In Coulter v The Queen (1998) 164 CLR 350 the requirement for a grant of leave to bring an appeal was observed by the majority (Mason CJ, Wilson and Brennan JJ at 356) as being:

“A preliminary procedure recognised by the legislature as a means of enabling the court to control in some measure the volume of appellate work requiring its attention.”

79. In the same case, Deane and Gaudron JJ described the requirement for leave as:

“...a necessary control device in certain areas of the administration of justice (e.g. appeals to a second appellate court) in this country. As a filter of work which comes before some appellate courts, it promotes the availability, the speed and the efficiency of justice in those appeals which are, in all the circumstances, appropriate to proceed to a full hearing before a particular court. It also represents a constraint upon the overall cost of litigation by protecting parties, particularly respondents, from the costs of a full hearing of appeals which should not properly be entertained by the relevant court either because they are hopeless or, in the case of a civil appeal to a second appellate court, because they do not possess special features which outweigh the prima facie validity of the ordinary perception that the availability of cumulative appellate processes can, of itself, constitute a source of injustice. In these circumstances, it is neither surprising nor regrettable that the application for leave to special leave to appeal has, in this country, become a generally accepted and standard part of ordinary curial procedures.”

80. In Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164, Basten JA and Tobias AJA noted what was said by the majority in Coulter and described it at [36] as clearly applicable to civil proceedings as well as criminal. The Court in Be Financial later stated:

“40 The Court has power to direct that an application for leave and the prospective appeal or cross-appeal be held concurrently: UCPR, r 51.14. Such a direction is likely where it appears that one of the following factors is satisfied:

(a) it is probable that leave would be granted;

(b) the material and arguments relevant to the appeal would also be relevant, in large part, on an application for leave alone and there is a good prospect of leave being granted;
(c) although there may be real doubt as to the grant of leave, the balance of convenience otherwise favours a concurrent hearing.
41 Where an application is not the subject of a direction for a concurrent hearing, the parties can assume that, on the material available to the Court when the direction was made, none of the factors set out above was perceived to be satisfied.”

81. I consider that in this case leave should be determined as a preliminary and discrete issue from the appeal grounds. In my opinion, an order for the application for leave and the appeal to be heard together is more appropriate where the grant of leave is more probable than not. In this case, the plaintiffs have not established that a grant of leave is probable. In fact, their submissions indicate that the issues they intend to rely upon in the appeal may change if a determination was made refusing access to the undisclosed documents.
82. There are some considerations, mentioned above at [46], raised by the defendant/applicant as indicating that it is unlikely that leave will be granted. It is not, of course, my role in deciding the present application to express a conclusion on the merits or otherwise of these matters. I consider it is sufficient that I do not think a grant of leave is, on the material available to me, more probable than not.
83. I also consider that the order by the defendant is appropriate in light of the length and conduct of the proceedings before the Tribunal and Appeal Panel. In determining the application, some regard should be given to the duration of the hearing before the Appeal Panel and the volume of the transcripts and exhibits generated in those proceedings. The defendant/applicant has submitted that separating the application for leave from the appeal would save significant time and resources if leave is refused. I accept that it would be undesirable to allow a hearing of similar scale to the hearing before the Appeal Panel to commence in this Court if the proceedings could viably be concluded in a separate application for leave hearing. In these circumstances, separating the issues in the way sought by the defendant/applicant constitutes an appropriate “filter”, as discussed in the authorities referred to above and accords with s 56 of the Civil Procedure Act which requires the “just, quick and cheap’” resolution of disputes.

Orders

84. Accordingly in each of proceedings 2014/308869 and 2014/308878, I make the following orders:
    • (1) The application for leave to appeal be heard separately from the appeal.
    • (2) Unless written application is made to my Associate within seven days for a different order, I order the plaintiffs to pay the defendant’s costs of the application heard on 12 August 2015.

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