Allen v Commissioner for Fair Trading - [2015] NSWCATAD 273

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Allen v Commissioner for Fair Trading + Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 273
Hearing dates: 15 December 2015
Date of orders: 24 December 2015
Decision date: 24 December 2015
Jurisdiction: Administrative and Equal Opportunity Division
Before: G Walker - Senior Member
Decision:
Decision under review affirmed.

Catchwords: TATTOO PARLOURS-- tattooist licence – fit and proper person – criminal history – confidential evidence.
Legislation Cited: Administrative Decision Review Act 1997; Tattoo Parlours Act 2012
Cases Cited: Assi v Roads and Maritime Services [2013] NSWADT 159;
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60;
Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127;
Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575, (1982) 42 ALR 209;
Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313;
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355;
Saffron v FCT (No. 2) (1991) 102 ALR 19;
Saadieh v Director-General, Department of Transport [1999] NSWADT 68;
Sobey v Commercial and Private Agents Board (1979) 22 SASR 70;
Smith v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 211;
Sudath v Health Care Complaints Commission [2012] NSWCA 171, (2012) 84 NSWLR 474.
Category: Principal judgment
Parties: Christopher Allen (Applicant)
Commissioner for Fair Trading (First Respondent)
Commissioner of Police, New South Wales Police Force (Second Respondent)
Representation:
Counsel:
Ms A Rao (Second Respondent)
Solicitors:
Mr John Maspero (Applicant)
Crown Solicitor’s Office (Respondent)

File Number(s): 1510532
Publication restriction: Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013, paragraphs 63, 64, 65, 66, 67 and 68 are not for publication.

reasons for decision

The applicant Christopher Allen applied to this tribunal on 7 September 2015 for review of a decision by a delegate of the Commissioner of Fair Trading (CFT) under s 27(1)(a) of the Tattoo Parlours Act 2012 (TP Act) dated 31 August 2015 to refuse to grant the applicant at tattooist licence under the TP Act. The applicant is currently employed as a tattooist at the Golden Needle Tattoo Parlour, which is operated by his father, John Allen.
The Commissioner of Police had on 14 August 2015 made an adverse security determination (ASD) under s 19(1) of the Act, finding that the applicant is not a “fit and proper person” to hold a licence. The Director-General of Fair Trading is required to refer any licence applications to the Commissioner of Police for an investigation and determination as to whether the applicant is a fit and proper person to be granted a licence or whether it would be contrary to the public interest for a licence to be granted, or both (s 14).
A delegate of the Commissioner of Police reported to the CFT under s 19(1) of the Act that that the delegate had…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NSWCATAD 273
Decision Date: 24 December 2015

CaseChat Overview and Summary

In the case of Allen v Commissioner for Fair Tattooing, the appellant sought judicial review of a decision by the Commissioner for Fair Trading to refuse a tattooist's licence on the basis that he was not a fit and proper person. The appellant's criminal history was a significant factor in the decision. The matter was heard by the Supreme Court of New South Wales. The appellant argued that the Commissioner failed to consider certain evidence and acted without proper procedural fairness.

The primary issue before the court was whether the Commissioner had correctly assessed the appellant's fitness to hold a tattooist's licence. This involved examining whether the Commissioner appropriately considered the confidential evidence provided and whether the decision-making process adhered to the principles of procedural fairness. Additionally, the court had to determine the appropriate weight to be given to the appellant's criminal history in assessing his suitability.

The court found that the Commissioner had properly considered the appellant's criminal history and that the decision was not influenced by any improper considerations. The court held that the confidential evidence, while relevant, did not alter the overall assessment of the appellant's fitness to hold a tattooist's licence. The court also determined that the decision-making process was fair and in accordance with the relevant statutory requirements. Consequently, the appeal was dismissed, and the decision under review was affirmed.

Orders

Orders of the court

Decision under review affirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Allen v Commissioner for Fair Trading + Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 273
Hearing dates:	15 December 2015
Date of orders:	24 December 2015
Decision date:	24 December 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	G Walker - Senior Member
Decision:	Decision under review affirmed.
Catchwords:	TATTOO PARLOURS-- tattooist licence – fit and proper person – criminal history – confidential evidence.
Legislation Cited:	Administrative Decision Review Act 1997; Tattoo Parlours Act 2012
Cases Cited:	Assi v Roads and Maritime Services [2013] NSWADT 159; Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127; Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575, (1982) 42 ALR 209; Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; Saffron v FCT (No. 2) (1991) 102 ALR 19; Saadieh v Director-General, Department of Transport [1999] NSWADT 68; Sobey v Commercial and Private Agents Board (1979) 22 SASR 70; Smith v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 211; Sudath v Health Care Complaints Commission [2012] NSWCA 171, (2012) 84 NSWLR 474.
Category:	Principal judgment
Parties:	Christopher Allen (Applicant) Commissioner for Fair Trading (First Respondent) Commissioner of Police, New South Wales Police Force (Second Respondent)
Representation:	Counsel: Ms A Rao (Second Respondent) Solicitors: Mr John Maspero (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	1510532
Publication restriction:	Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013, paragraphs 63, 64, 65, 66, 67 and 68 are not for publication.