Mifsud v Commissioner of Police [2020] NSWCATOD 172

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Mifsud v Commissioner of Police [2020] NSWCATOD 172 Hearing dates: On the papers Date of orders: 4 June 2020 Decision date: 04 June 2020 Jurisdiction: Occupational Division Before: Naida Isenberg, Senior Member Decision: The application for an extension of time is refused. Catchwords: EXTENSION OF TIME – principles – no discretion in substantive matter Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Police Act 1990 Security Industry Act 1997 Cases Cited: Jackson v NSW Land and Housing Corporation [20141 NSWCATAP 22 Texts Cited: None cited Category: Principal judgment Parties: Peter Mifsud (Applicant) Commissioner of Police (Respondent) Representation: Solicitors: Applicant (Self Represented) Office of General Counsel, NSW Police (Respondent) File Number(s): 2020/00078278 Publication restriction: Nil

REASONS FOR DECISION

Background 1. The Applicant, Peter Mifsud, a former Probationary Constable, applied to the Respondent for a licence under the Security lndustry Act 1997 (SI Act). On 3 December 2019, the Respondent refused to issue the Applicant a licence. That decision was affirmed on internal review on 18 December 2019. On 9 March 2020 the Applicant applied to the Tribunal for review of the decision. 2. At a Directions Hearing on 21 April 2020, the Respondent raised as a preliminary issue that the Application for Review was filed out of time, and presumably, did not consent to the late filing. The Applicant was directed to make a formal application for an extension of time, and the Applicant filed material in support of such an application. 3. The material I had before me consisted of: 1. Application for Review dated 9 March 2020 2. The Respondents s 58 bundle 3. The Applicant's extension of time application and supporting material 4. Copy of the Internal Review check list 5. Further material filed and served by the Applicant dated 18 March 2020, 23 March 2020, 22 April 2020

Relevant legislation 1. Section 29 of the Sl Act provides as follows: 29 Right to seek administrative review from Civil and Administrative Tribunal (1) A person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the following decisions: (a) the refusal or failure by the Commissioner to grant a licence to the person, …. 1. Section 40 of the Civil and Administrative Tribunal Act 2013 (CAT Act) states as follows: 40 Making of applications and appeals An application or appeal to the Tribunal is to be made in the time and manner prescribed by enabling legislation or the procedural rules. 1. Rule 23 of the Civil and Administrative Tribunal Rules 2014 (the CAT Rules) states as follows: 23 General applications … (3) Unless the Tribunal grants an extension under section 41 of the Act, an application must be made: (a) in the case where enabling legislation specifies the period within which the application is to be made—within the period specified, or (b) in any other case—within 28 days from the day on which the applicant became entitled under the enabling legislation to make the application. … 1. Rule 13 of the CAT Rules states as follows: 13 Service, giving and lodgment of notices or documents … (4) When notice or document taken to be served, given or lodged Unless the contrary is proved, the time at which a notice or document is taken to be served, given or lodged is: (a) in the case of a copy of a notice or document that is posted—at the end of the seventh working day after the date on which the notice or document was posted to the person, or … 1. Section 41 of the CAT Act states: 41 Extensions of time (1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. … 1. Section 36 of the CAT Act states as follows: 36 Guiding principle to be applied to practice and procedure (1) The "guiding principle" for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The Tribunal must seek to give effect to the guiding principle when it: (a) exercises any power given to it by this Act or the procedural rules, or interprets any provision of this Act or the procedural rules. 1. Section 16 of the SI Act 1997 states as follows: 16 Restrictions on granting licence—criminal and other related history (1) The Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant: … (d) has, within the period of 10 years before the application for the licence was made, been removed or dismissed from the NSW Police Force … on the ground of the applicant's integrity as a police officer. … (4A) The Commissioner may refuse to grant an application for a licence if, within the period of 10 years before the application for the licence was made, the applicant has been removed from the NSW Police Force under section 181D of the Police Act 1990 on grounds other than the applicant's integrity as a police officer. 1. Section 80 of the Police Act 1990 states as follows: 80 Appointment and promotion of constables … (3) The Commissioner may dismiss any such probationary police officer from the NSW Police Force at any time and without giving any reason. … 1. Section 181D of the Police Act provides: 181D Commissioner may remove police officers (1) The Commissioner may, by order in writing, remove a police officer from the NSW Police Force if the Commissioner does not have confidence in the police officer's suitability to continue as a police officer, having regard to the police officer's competence, integrity, performance or conduct. … (3) Before making an order under this section, the Commissioner: (a) must give the police officer a notice setting out the grounds on which the Commissioner does not have confidence in the officer's suitability to continue as a police officer, and (b) must give the police officer at least 21 days within which to make written submissions to the Commissioner in relation to the proposed action, and (c) must take into consideration any written submissions received from the police officer during that period. (4) The order must set out the reasons for which the Commissioner has decided to remove the police officer from the NSW Police Force. (5) The removal takes effect when the order is made. (7) Except as provided by Division 1C (a) no tribunal has jurisdiction or power to review or consider any decision or order of the Commissioner under this section, and (b) no appeal lies to any tribunal in connection with any decision or order of the Commissioner under this section. In this subsection," tribunal" means a court, tribunal or administrative review body, and (without limitation) includes the Industrial Relations Commission. (7A) Nothing in this section limits or otherwise affects the jurisdiction of the Supreme Court to review administrative action. (7B) Nothing in Division 1C limits or otherwise affects the Commissioner's power to vary or revoke an order in force under this section. (8) For the purposes of this Act, removal of a police officer from the NSW Police Force under this section has the same effect as if the police officer had resigned (or, in the case of a police officer who is of or above the age of 55 years, had retired) from the NSW Police Force. (9) The Commissioner may take action under this section despite any action with respect to the removal or dismissal of the police officer that is in progress under some other provision of this Act and despite the decision of any court with respect to any such action.

Consideration

When should the Applicant have made his Application for Review? 1. As the Sl Act does not specify the time period within which an Application for Review is to be made, the relevant time period within which the application for review was to be made is set out in Rule 23(3)(b) of the CAT Rules – that is within 28 days of receipt of the decision. 2. The Respondent's decision was dated 18 December 2019. According to the Respondent's checklist it was posted that date. In his Application for Review the Applicant wrote that he was notified of the decision on 18 December 2019. I agree with the Respondent's observation that it would be unlikely that the Applicant received the decision on 18 December 2019, the same date the decision was posted to him; I consider it more likely that he received the decision sometime later. Applying Rule 13 of the CAT Rules, the decision under review is deemed to have been provided to the Applicant on 31 December 2020. 3. Therefore, the Application for Review, which was lodged on 9 March 2020, should have been lodged on or before on 27 January 2020.

In what circumstances can the Tribunal grant an extension of time? 1. Under s 41 of the CAT Act the Tribunal has the power to grant an extension of time in which to file an application for review. The power under s 41 of the CAT Act is a discretionary one and in exercising that discretion, the Tribunal must seek to give effect to the guiding principles to facilitate the just, quick and cheap resolution of the real issues in the proceeding: s 36 CAT Act. 2. The Respondent helpfully referred me to Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 where the Appeal Panel provided guidance as to the factors the Tribunal should take into account when considering whether to exercise its discretion to grant an extension of time. Although in the context of an appeal, the factors are applicable to consideration of an extension of time application in respect of an Application for Review. In summary those factors, are, relevantly: 1. The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon him or her. 2. Generally, in an application for an extension of time the Tribunal will be required to consider: 1. The length of the delay; 2. The reason for the delay; 3. The Applicant's prospects of success, that is usually whether the Applicant has a fairly arguable case; and 4. The extent of any prejudice suffered by the Respondent, 1. The thrust of each factor is addressed in turn.

Would strict compliance with the rules be unjust to the Applicant? 1. The Respondent submitted strict compliance with the statutory timeframe does not work an injustice upon the Applicant. I do not think it is possible to answer this question without an evaluation of the merits of the substantive application, because, clearly, if the application had merit, then requiring strict adherence to the statutory timeframe may be unjust to the Applicant.

Is there prejudice to the Respondent if the extension of time is granted? 1. The Respondent submitted it is entitled to certainty in relation to its decision. The Commissioner has discharged his statutory functions under the Sl Act, in that he has applied the mandatory refusal requirement, and conducted an internal review of that decision at the request of the Applicant. The Respondent should, it was submitted, unless the discretionary factors relating to extension of time are significant, be able to be satisfied that his decision stands. I accept that it is desirable that the Respondent has certainty in relation to its decision, however, I do not think this factor, in the present matter has much weight. The Respondent is not otherwise disadvantaged by having the matter reviewed.

What was the length of the delay? 1. Notwithstanding that the Respondent was prepared to accept that the decision under review may not have been received by the Applicant until 31 December 2020, it nonetheless submitted that the length of delay is significant. 2. On the Respondent's calculations, using the date of notification of the decision provided in Rule 13(4)(a), the date the Applicant ought to have made his application for administrative review expired on 27 January 2020. Instead, the Applicant's application for administrative review was made on 9 March 2020, some 42 days late. 3. The Applicant's material relevantly stated that he contacted the Tribunal on 6 March 2020 and was directed to fill out an application and lodge it at his "local NCAT" which was Penrith. I am satisfied that the Applicant made that enquiry and promptly lodged his Application for Review. It remains, though, even taking into account his contact with the Tribunal, the Application for Review was filed over a month late.

What was the reason for the delay? 1. In his Application for Review the Applicant wrote that he had undergone stress because of [his] "predicament and that he did not have the mental strength to open the letter from [the Respondent] and read it". He said he was really upset at the time. From the available material it appears that the Applicant was referring to his dismissal from the Police Force on 31 October 2019, and that he was served with the dismissal notice on 1 November 2019. 2. On this evidence, the Applicant was in possession of the decision under review and did not to open it. The Respondent submitted that Applicant was in receipt of the decision, had opportunity to open and consider that letter, and simply chose not to do so. I cannot accept the Applicant's failure to open his mail as a valid reason for the delay in making his application. 3. The Applicant claimed he was "upset" at the time, but provided no medical evidence to the effect that his mental state was sufficiently affected that he was unable to attend to his mail. Nonetheless, I accept that Applicant was under stress at the loss of his chosen career, which had occurred only weeks before the decision in relation to his security licence.

What are the Applicant's prospects of success? 1. The Respondent submitted the Applicant has no prospects of success in the substantive review. 2. Under s 16(1)(d) of the SI Act the Commissioner, and hence the Tribunal on review, must refuse to grant a licence in circumstances where the Applicant was, within the past 10 years, dismissed from the NSW Police Force on the grounds of integrity. The determination in the substantive matter is whether the "objective facts" relating to the Applicant satisfy s 16(1)(d) of the Sl Act: Bourke & Ors v The New South Wales Commissioner of Police [1998] ADT, 17 December 1998 (unreported). The then President explained what was meant by "objective facts": The cases make it clear...that the Tribunal is only able to proceed to satisfy itself that the objective facts, as they are called, upon which the Commissioner relied were properly relied on by the Commissioner. That clearly goes simply to the question of whether there was a … finding …. of a kind which fits within the parameters of section 16. 1. The Respondent contended that the Applicant was, within the last 10 years, dismissed from the NSW Police Force and that his dismissal was on the grounds of his integrity. Therefore, it was submitted, the refusal of his application for a security licence must be refused: s 16(1)(d) of the Act. On the basis of the dismissal notice, I am satisfied that the Applicant was dismissed from the NSW Police Force on 31 October 2019. 2. It remained for me to be satisfied whether the Applicant was dismissed on the basis of his integrity. Section 80(3) of the Police Act does not require reasons to be given for the dismissal; however the dismissal notice referred to grounds set out in the Show Cause Notice (Notice) which had been given to the Applicant and to which he had provided a Response. 3. The Show Cause Notice contains four allegations of misconduct on the part of the Applicant. In Allegation 1 it was alleged the Applicant had "failed to demonstrate a satisfactory standard of operational performance"; and in Allegation 2 that he had "failed to remain enrolled in the Associate Degree in Policing Practice at Charles Sturt University". 4. The two other grounds were relied on by the Respondent as relating to the Applicant's integrity. Allegation 3 was to the effect that the Applicant knowingly recorded the incorrect date on a statement, and Allegation 4 was that the Applicant knowingly created an official police report containing incorrect information. 5. The Applicant had provided a detailed response to the Notice. He wrote of his perseverance [in his career] in the face of what he alleged was "bullying, harassment, humiliation, discrimination and prejudice". 6. In relation to Allegation 3 specifically, (that the Applicant knowingly recorded the incorrect date on a statement), the Applicant in his Response did not deny that he had changed the date. He conceded he had made an error of judgment, but wrote that he was inexperienced and did not have a supportive mentor. He claimed he was not told what he had done was wrong. 7. As to Allegation 4 (that the Applicant knowingly created an official police report containing incorrect information) the Applicant wrote about being asked to change his statement to one in the first person. He did not appear to address the contention that he drafted a statement which included an account of a conversation which, he admitted to another officer, did not occur. 8. At paragraph 6.4 of the Notice the delegate of the Commissioner wrote: In relation to Allegations 3 and 4, I am extremely concerned that your alleged conduct appears to raise serious questions about your integrity... Your alleged conduct appears to suggest that you do not possess the integrity necessary to be a police officer. 1. The Applicant made detailed submissions in these proceedings in which he wrote that he "wanted information as to why [his] integrity was in question …" He considered he had been "set up". He canvassed the reason he had poor assessments, and repeated his contention about bullying and harassment and that he was not adequately mentored. He wrote that, in relation to the allegation that he knowingly recorded the incorrect date on a statement (Allegation 3) he considered he was being "set up to fail". In relation to Allegation 4 (that he knowingly created an official police report containing incorrect information) he again wrote about being asked to change his statement to one in the first person, and again did not address the contention that the statement included an account of a conversation which, he had admitted, did not occur. While it is perhaps understandable that the Applicant seeks to canvass the findings that led to his dismissal from the Police Force, that is not a matter for the Tribunal. 2. Similarly, much of the material filed by the Applicant related to his achievements as a Probationary Constable, for example, his impeccable driving record, his academic results, certificates of appreciation, references in relation to his youth work, and his mentor's generally positive remarks. While commendable, these are not relevant to consideration of the objective facts as to whether the Applicant's dismissal from the Police Force was on the ground of integrity. 3. I must consider the objective facts as to whether the Applicant's removal was "on the ground of" integrity in accordance with s 16(1)(d) of the Sl Act. The delegate wrote in the Notice in relation to Allegations 3 and 4 that the alleged conduct raised serious questions the Applicant's integrity, and concluded that that conduct suggested that he did not possess the integrity necessary to be a police officer. The Dismissal Order, and the Notice upon which it is based, therefore, make it clear that two of the grounds on which the Applicant was dismissed related to his integrity. 4. Therefore, on consideration of the objective facts, I would be obliged to affirm the decision to refuse the licence because the Applicant had been dismissed from the Police Force on the ground of his integrity, in accordance with s 16(1)(d) of the SI Act. 5. Therefore, I find that that, were the extension of time granted, the outcome for the Applicant cannot be favourable, because I do not have any discretion to allow his Application for Review, given the reasons for his dismissal. 6. Consequently there is no utility in allowing the extension of time.

Order 1. The application for an extension of time is refused. 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: 07 March 2023