Avnell v Commissioner for Fair Trading - [2018] NSWCATAD 58

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Avnell v Commissioner for Fair Trading [2018] NSWCATAD 58
Hearing dates: 4 December 2017 and 26 February 2018
Date of orders: 16 March 2018
Decision date: 16 March 2018
Jurisdiction: Administrative and Equal Opportunity Division
Before: Naida Isenberg, Senior Member
Decision:
1. The decision under review is set aside.
2. In substitution for the decision under review, the Applicant’s application for a tattooist licence is granted.
Catchwords: ADMINISTRATIVE LAW – tattooist licence – licence renewal - fit and proper person – public interest
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW)
Tattoo Parlours Act 2012 (NSW)
Cases Cited: Allen v Commissioner of Fair Trading [2015] NSWCATAD 273
Austin v Commissioner for Fair Trading and Commissioner of Police [2016] NSWCATAP 179
Commissioner of Police v Toleafoa [1999] NSWADTAP 9
Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65
Dyas v Director-General, Fair Trading and Commissioner of Police [2014] NSWCATAD 223
Saadieh v Director General, Department of Transport [1999] NSWADT 68
Smith v Commissioner of Police NSW Police Force and NSW Fair Trading [2014] NSWCATAD 184
Zahra v Commissioner of Police, NSW Police Force and NSW Fair Trading [2014] NSWCATAD 211
Category: Principal judgment
Parties: Nathan Avnell (Applicant)
Commissioner for Fair Trading (First Respondent)
Commissioner of Police (Second Respondent)
Representation:
Counsel:
J Ireland (Applicant)
A Douglas-Baker (First and Second Respondents)
Solicitors:
McGirr Lawyers (Applicant)
Crown Solicitor (First and Second Respondents)

File Number(s): 2017/268305
Publication restriction: Pursuant to s 64(1)(b), (c) and (d) of the Civil And Administrative Tribunal Act 2013, the recording and transcript of the confidential hearing on 26 February 2018, confidential exhibit RC1 and the paragraphs of these reasons marked “[NOT FOR PUBLICATION]” are not for publication or for disclosure to the public or the Applicant.

REASONS FOR DECISION

Background

Nathan Avnell, the Applicant, has been employed in the tattoo industry for some years, notably, prior to the introduction of the Tattoo Parlours Act 2012 (the Act), which brought about regulation of the industry. Notwithstanding that he had a criminal conviction for aggravated dangerous driving in 2004 (for which he was imprisoned) and a number of traffic offences, he obtained a tattooist licence (licence) in March 2014 which was due to expire on 5 March 2017.
On 24 November 2014, that is, after his licence was issued, he was convicted of a number of offences.
When, on 1 January 2017, he applied for renewal of his licence, his application was refused by the First Respondent (Fair Trading).

The licensing regime

The licensing regime established by the Act was set out in detail in the decisions of Smith v Commissioner of Police NSW Police Force & NSW Fair Trading [2014] NSWCATAD 184 (Smith) and Zahra v Commissioner of Police, NSW Police Force & NSW Fair Trading [2014] NSWCATAD 211 (Zahra).
In summary, from November 2013 the Act introduced licensing requirements for operators of tattoo parlours (operators) and, relevantly, tattooists. It is an offence for a tattooist to fail…

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: [2018] NSWCATAD 58
Decision Date: 16 March 2018

CaseChat Overview and Summary

The case of Avnell v Commissioner for Fair Trading involves the applicant, Avnell, seeking a tattooist licence from the Commissioner for Fair Trading. Avnell's application was denied due to concerns about her being a "fit and proper person" to hold such a licence. The dispute was brought before the court, which was required to determine whether the Commissioner's decision to deny the licence was lawful, reasonable, and justified.

The court was tasked with deciding whether the Commissioner had correctly applied the criteria for assessing fitness and propriety, and whether the decision was supported by substantial evidence. The primary legal issue was whether the Commissioner's decision was based on an erroneous interpretation of the relevant statutory provisions, and whether the decision was unreasonable in light of the evidence presented.

The court found that the Commissioner had not correctly applied the statutory criteria when assessing Avnell's fitness and propriety. The court held that the evidence presented did not support the conclusion that Avnell was not a fit and proper person to hold a tattooist licence. The court concluded that the Commissioner's decision was unreasonable and not based on the correct application of the law. Consequently, the court set aside the Commissioner's decision and granted Avnell's application for a tattooist licence in its place.

Orders

Orders of the court

1. The decision under review is set aside.

2. In substitution for the decision under review, the Applicant’s application for a tattooist licence is granted.

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:	Avnell v Commissioner for Fair Trading [2018] NSWCATAD 58
Hearing dates:	4 December 2017 and 26 February 2018
Date of orders:	16 March 2018
Decision date:	16 March 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Naida Isenberg, Senior Member
Decision:	1. The decision under review is set aside. 2. In substitution for the decision under review, the Applicant’s application for a tattooist licence is granted.
Catchwords:	ADMINISTRATIVE LAW – tattooist licence – licence renewal - fit and proper person – public interest
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Tattoo Parlours Act 2012 (NSW)
Cases Cited:	Allen v Commissioner of Fair Trading [2015] NSWCATAD 273 Austin v Commissioner for Fair Trading and Commissioner of Police [2016] NSWCATAP 179 Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65 Dyas v Director-General, Fair Trading and Commissioner of Police [2014] NSWCATAD 223 Saadieh v Director General, Department of Transport [1999] NSWADT 68 Smith v Commissioner of Police NSW Police Force and NSW Fair Trading [2014] NSWCATAD 184 Zahra v Commissioner of Police, NSW Police Force and NSW Fair Trading [2014] NSWCATAD 211
Category:	Principal judgment
Parties:	Nathan Avnell (Applicant) Commissioner for Fair Trading (First Respondent) Commissioner of Police (Second Respondent)
Representation:	Counsel: J Ireland (Applicant) A Douglas-Baker (First and Second Respondents) Solicitors: McGirr Lawyers (Applicant) Crown Solicitor (First and Second Respondents)
File Number(s):	2017/268305
Publication restriction:	Pursuant to s 64(1)(b), (c) and (d) of the Civil And Administrative Tribunal Act 2013, the recording and transcript of the confidential hearing on 26 February 2018, confidential exhibit RC1 and the paragraphs of these reasons marked “[NOT FOR PUBLICATION]” are not for publication or for disclosure to the public or the Applicant.