Farooq v Commissioner of Police, NSW Police Force

1. [1]

   Mr Farooq brought these proceedings in August 2025 seeking orders quashing a decision of the Commissioner of Police to revoke his security license, alleging amongst other things jurisdictional errors; a misconstruction of s 22 of the Mutual Recognition Act 1992 (Cth); the denial of the procedural fairness he was entitled to receive; and a consideration of irrelevant matters and a failure to consider critical relevant factors. He also contends that this decision was made for an improper purpose and in bad faith, with the result that it was legally unreasonable.

2. [2]

   This judgment deals with a motion filed by the Commissioner, supported by the affidavit of his solicitor Ms Sims, seeking orders that the summons be dismissed under r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) and/or s 34 of the Civil and Administrative Tribunals Act 2013 (NSW).

3. [3]

   There is no issue that in 2024 Mr Farooq held an ACT security license when he applied in March under the Mutual Recognition Act to have his license recognised in NSW. Or that his application was granted in August 2024, with the result that he was issued a NSW license regulated by the Security Industries Act 1997 (NSW).

4. [4]

   Later that year, however, Mr Farooq was issued a notice to show cause why that license should not be revoked, it being alleged that both his ACT and NSW licensing applications contained a false address. Mr Farooq resisted the revocation, which the Commissioner pursued on public interest grounds, under the applicable regulations.

5. [5]

   The revocation application succeeded, the delegate issuing a notice of revocation in January 2025, which Mr Farooq then unsuccessfully challenged by an internal review application, which he pursued under the Security Industries Act. He then also unsuccessfully pursued a review of that decision before the NSW Civil and Administrative Tribunal, NCAT, which in June 2025 affirmed the decision to revoke his license: Farooq v Commissioner of Police, New South Wales Police Force [2025] NSWCATOD 73.

6. [6]

   Mr Farooq then instituted an appeal against NCAT’s decision: s 80 Civil and Administrative Tribunals Act and s 26(1)(d) of the Security Industries Act. Orders available to be made on that appeal included quashing the challenged decision and reinstating the license in issue: s 34 Civil and Administrative Tribunals Act.

7. [7]

   Mr Farooq’s appeal was later dismissed by NCAT when he failed to appear at a call over, with the result that he filed a reinstatement application in August 2025. After communication between the parties, the Commissioner consented to his withdrawal of the reinstatement application, which was reflected in orders made by NCAT on 28 August 2025.

8. [8]

   Before the withdrawal of that application, Mr Farooq commenced these proceedings. The Commissioner later asked him to discontinue them, the relief he sought in relation to the license revocation decision no longer being available, given NCAT’s unchallenged decision.

9. [9]

   Mr Farooq refused to discontinue the proceedings. He has served an amended summons, which he has not filed, by which he still seeks to challenge the original revocation decision. At the hearing of the motion confirming that he did not pursue his judicial review application in respect of the NCAT decision by which the parties are bound.

10. [10]

    Mr Farooq still resists the Commissioner's motion, seeking to rely on information that he has obtained from social media, that some 450 other license holders have had their licenses cancelled in circumstances which he considers are similar to his.

11. [11]

    Mr Farooq appeared unrepresented at the hearing, advising the Court that to date he has been unable to obtain pro bono legal assistance, which he still intends to pursue. That helped explain his written submissions, which he had prepared with the assistance of AI. It undoubtedly suffers from the now familiar problem that cases cited and documents quoted do not exist and that other cases cited do not stand for the propositions relied on.

12. [12]

    That Mr Farooq does not properly understand the case he had to meet, must be accepted. But still, the matters over which the parties have joined issue must be resolved by application of the law which binds them.

Issues

1. [13]

   In issue is thus whether:

The parties’ cases

1. [14]

   The Commissioner contends that in the face of the withdrawal of Mr Farooq’s appeal against the NCAT decision, the Court should refuse to conduct the judicial review of the license revocation decision, given that Mr Farooq has already unsuccessfully challenged that decision before NCAT, with the result that its decision remains binding. Further, that in the circumstances, his summons and the amended summons he has foreshadowed, have no reasonable prospects of success.

2. [15]

   Mr Farooq relied on his August 2025 affidavit, where he contended that allegations which had not been raised in the show cause notification had been relied on, including before NCAT. That resulting in a denial of procedural fairness. In his November affidavit he explained the basis of his understanding that he had the right to pursue the relief he sought in his summons before this Court under s 69 of the Supreme Court Act 1970 (NSW). That including that NCAT did not have the jurisdiction to determine what was in issue in these proceedings, that depending as it did on the proper interpretation and application of Commonwealth laws.

The proceedings are misconceived

1. [16]

   The decision to revoke Mr Farooq’s security license was made by the Commissioner’s delegate in accordance with provisions of the Security Industry Act 1997 (NSW) and the Security Industry Regulation 2016 (NSW). Concerned as they were with the license he had been granted under that Act in this State, as well as its revocation on public interest grounds, in appropriate circumstances. Section 26(1) empowering the Commissioner to revoke a license in circumstances specified there.

2. [17]

   Mr Farooq was entitled to challenge the revocation decision as he did. That being regulated by s 29(1) of the Administrative Decisions Review Act 1997 (NSW), which permits administrative review of a decision to revoke a security license on application to NCAT.

3. [18]

   The result of the course Mr Farooq pursued is that the parties are now bound by NCAT’s June 2025 decision, in which his challenge failed, he having brought but withdrawn his appeal from that decision. Despite the result of that decision having been the affirmation of the internal review decision made by the Commissioner’s delegate, following Mr Farooq’s challenge to the decision to revoke his license on public interest grounds, which was regulated by the Security Industries Act.

4. [19]

   It was s 29 of that Act which gave Mr Farooq the right to apply to NCAT for the administrative review which he pursued. It was in those review proceedings before NCAT that Mr Farooq admitted in cross examination that he had never lived in the ACT, even though he had provided an ACT address as his residential address on both his ACT and NSW security license applications. Further, that in a later change of address form he had described the ACT address he had given as his previous physical address: Farooq v Commissioner of Police at [20].

5. [20]

   Mr Farooq complains about the conduct of those proceedings, amongst other matters, complaining about how he came to make such admissions in cross examination. That is not relevant to his judicial review proceedings, because he does not challenge the NCAT decision as he could have under s 69 of the Supreme Court Act, albeit that the Court has a discretion not to hear such an application. He could also have pursued such complaints on his abandoned NCAT appeal.

6. [21]

   Section 83(1) of the Civil and Administrative Tribunal Act also gives a party to an external or internal appeal the right, with the leave of this Court, to appeal to it on a question of law. Where, instead, a party chooses to invoke the Court’s supervisory jurisdiction by way of judicial review under s 69 of the Supreme Court Act, the Court will usually refuse to conduct a judicial review “because the inference may readily be drawn that, by commencing proceedings for judicial review, the moving party is deliberately seeking to avoid the obligation to obtain leave to appeal”: Makowska v St George Community Housing Ltd [2022] NSWCA 5 at [28].

7. [22]

   Section 34(1) of the Civil and Administrative Tribunals Act also permits the Court to refuse to conduct a judicial review of an NCAT decision, if an internal appeal or an appeal to a court could be or has been lodged.

8. [23]

   Mr Farooq’s explanation for not pursing his NCAT appeal, that he understands it cannot resolve the matters he wishes to agitate in these proceedings, cannot be accepted. In any event, the relief he seeks to pursue is misdirected, concerned as it is with the original revocation decision, which he has already unsuccessfully challenged, NCAT having affirmed that decision.

9. [24]

   Section 66(2) of the Administrative Decisions Review Act having the effect that NCAT’s review decision is now taken to be the Commissioner’s decision, other than for the purposes of an administrative review under that Act and is “to have had effect as the decision of” the Commissioner on and from the date of the actual decision, unless NCAT orders otherwise. It did not do so.

10. [25]

    It is settled that the certiorari which Mr Farooq seeks to purse against the Commissioner’s original revocation decision is no longer available, it not having continuing legal consequences: Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 at [41]. Further, that NCAT’s decision has displaced that of the Commissioner, effectively becoming his decision, it having been obliged to stand in the Commissioner’s shoes, making its decision having regard to the position as it was at the time of the Commissioner’s revocation decision, having given Mr Farooq a reasonable opportunity to present this case: Shi v Migration Agents Registration Authority [2008] HCA 31 at [40]; Nathanson v Minister for Home Affairs [2022] HCA 26 at [7]; and Minister for Immigration and Multicultural Affairs v MZAPC [2025] HCA 5.

11. [26]

    Mr Farooq advanced no basis on which any view other than that he is not entitled to pursue the orders he insists he wishes this Court to make in relation to the revocation decision, is available, given the unchallenged NCAT decision by which the parties remain bound.

12. [27]

    In the result it must be accepted that his summons is misconceived and has no prospect of success.

Other problems

1. [28]

   Further, the orders Mr Farooq seeks by his proposed amended summons in relation to all revoked security licenses under the same practice being reinstated, is not available to be made in judicial review proceedings such as this, even if his application were treated as if it were concerned with the NCAT review decision. In these judicial review proceedings orders in respect of such third party licenses not being available to be made on Mr Farooq’s application. Albeit by his oral submissions it appears that he rather seeks to rely on such revocations as establishing that he has been part of a course of conduct not open under the statutory scheme, to revoke licenses.

2. [29]

   In his written submissions Mr Farooq also addressed the refusal of an application made to NCAT for an interim stay, which was also not raised by his summons. He also addressed aspects of the procedures pursued before the NCAT hearing, the way in which it was conducted, how his appeal was dealt with before he withdrew his reinstatement application, as well as the merits of the claims he wishes to press in these proceedings.

3. [30]

   Mr Farooq explained that he had withdrawn his application to reinstate his NCAT appeal, having failed to appear at the call over when his appeal was dismissed. That being the result, he claims, of a denial of procedural fairness, his mobile phone having malfunctioned and no attempt having been made by NCAT to ascertain whether he was having connection difficulties. His application having been withdrawn because of his decision to pursue these proceedings.

4. [31]

   Mr Farooq’s case is that both before NCAT and even in these proceedings, the Commissioner had deliberately pursued a course of procedural tactics intended to overwhelm and disadvantage him, appearing as he is unrepresented.

5. [32]

   Even if in truth Mr Farooq was seeking to challenge NCAT’s August 2025 decision in these judicial review proceedings, the matters dealt with in Makowska would arise for consideration. What he seeks to agitate not only turning on the tests in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 which apply to a summary dismissal application, which Mr Farooq addressed in his submissions, or the basis on which he wishes to challenge the revocation decision.

6. [33]

   Whether, Mr Farooq not having pursued his right of appeal before NCAT, the Court should refuse to exercise the discretion it is given by s 69 of the Supreme Court Act, to hear any challenge to the NCAT decision about which he also complains in his submissions, not having pursued his appeal, would then have to be considered.

7. [34]

   As would whether s 56 of the Civil Procedure Act, which requires the Court to exercise its functions to facilitate the just, quick and cheap resolution of the real issues in the proceedings, would permit the Court to give Mr Farooq an opportunity to replead, given all that would involve and cost. That having to be decided in light of the requirements of s 57(1) and 58, s57(1) requiring account to be taken of the objects there specified:

8. [35]

   Had he pursued his NCAT appeal and failed again, Mr Farooq could only have appealed to this Court on a question of law with leave. It is settled that it is not appropriate for the Court to permit parties to circumvent that requirement by an application for judicial review.

9. [36]

   It should also be noted that while s 38 of the Civil and Administrative Tribunals Act requires NCAT to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms, that permitting a “relatively informal approach when conducting proceedings”, it does not alter or in any way affect the substantive principles of law which NCAT must also apply in arriving at its decisions: Makowski at [46]-[47].

10. [37]

    They include the obligation to observe the requirements of procedural fairness and applicable statutory requirements, whether State or Federal, over which parties may join issue. It follows that Mr Farooq’s understanding that the matters he seeks to pursue in these proceedings could not have been pursued on his NCAT appeal, raising as they do the provisions of the Mutual Recognition Act, thus cannot be accepted as being correct.

11. [38]

    In the result I am satisfied that justice requires that the orders which the Commissioner seeks be made. To delay in case Mr Farooq is successful in obtaining the pro bono assistance which he has to date been unable to obtain and which he is seeking still to pursue by a recently filed motion, would not in all the circumstances accord with the requirements of s 56 of the Civil Procedure Act.

12. [39]

    Albeit I also accept that Mr Farooq should have the four weeks he sought to file written submissions in relation to the costs order the Commissioner pressed, an order that Mr Farooq bear the Commissioner’s costs, as agreed or assessed. That according with the usual order under the Uniform Civil Procedure Rules 2005 (NSW), that costs follow the event, the Commissioner having not pressed an application for indemnity costs, originally made.

Orders

1. [40]

   For these reasons the summons is dismissed with an order that Mr Farooq file and serve any submissions he wishes to rely on as to costs within 4 weeks, failing which the Court’s order will be that he bear the Commissioner’s costs, as agreed or assessed.