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Butler v Commissioner for Fair Trading

Butler v Commissioner for Fair Trading

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Case Copied 1 May 2017 52 min read

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Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Butler v Commissioner for Fair Trading [2017] NSWCATAD 138
Hearing dates: 15 March 2017
Date of orders: 01 May 2017
Decision date: 01 May 2017
Jurisdiction: Administrative and Equal Opportunity Division
Before: A Scahill, Senior Member
Decision:
Respondent’s decision is affirmed

Catchwords: Tattoo parlours- not fit and proper-not in the public interest
Legislation Cited: Administrative Decisions Review Act 1997
Civil and Administrative Tribunal Act 2013
Crimes Act 1900
Evidence Act 1995
Tattoo Parlours Act 2012
Tattoo Parlours Regulation 2013
Cases Cited: AJO v Director-General, Department of Transport [2012] NSWADT
Allen v Commissioner for Fair Trading and Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 273
Austin v Commissioner for Fair Trading + Commissioner of Police, NSW Police Force
[2015] NSWCATAD 244
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Blissett v Commissioner of Police, New South Wales Police; Web Protection Australia Ply Ltd v Commissioner of Police, New South Wales Police [2006] NSWADT 114
Cali v Commissioner of Police [2007] NSWADT 187
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Clark v WorkCover Authority of New South Wales [2006] NSWADT 320,
Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589
Commissioner of Police v Toleafoa [1999] NSWADTAP 9
Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16
Council of the NSW Bar Association v Power [2008] NSWCA 135.
Dessmann v Commissioner for Fair Trading & Anor [2015] NSWCATAD 255
Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65
Director-General, Ministry of Transport v FV (GD) [2008] NSWADTAP 60
Department of Transport and Infrastructure v Murray [2011] NSWADTAP 16
Director General, Department of Transport v Z (No. 2) (GD) [2002] NSWADTAP 37
Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63
Dyas v Director-General Fair Trading & Commissioner of Police [2014] NSWCATAD 223
Ex Parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448
Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127
Lal v Director-General, Department of Transport [2001] NSWADT 74
Melbourne v The Queen [1999] HCA 32; [1999] 198 CLR 1
Moore v Commissioner for Fair Trading and Commissioner of Police [2016] NSWCATAD 80
Obradovic v Commissioner for Fair Trading, Office of Fair Trading (GD) [2006] NSWADTAP 18
O'Donnell v Commissioner for Fair Trading [2016] NSWCATAD 166
O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210
Pillai v Messiter [No.2] (1989) 16 NSWLR 197
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392
Saadieh v Director General Department of Transport [1999] NSWADT 68
Smith v Commissioner of Police NSW Police Force & NSW Fair Trading [2014] NSWCATAD 184
Sobey v Commercial and Private Agents Board (1979) 22 SASR 70
Stevens v WorkCover Authority of…

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: [2017] NSWCATAD 138
Decision Date: 01 May 2017

CaseChat Overview and Summary

In the matter of Butler v Commissioner for Fair Trading, the dispute involved a tattoo parlour's application for a licence renewal, which was denied by the Commissioner for Fair Trading due to concerns over the owner's fitness and the public interest. The case was heard in the Supreme Court of New South Wales. The owner, Butler, challenged the decision, arguing that the Commissioner's determination was unreasonable and not supported by the evidence. The court was tasked with determining whether the Commissioner's decision was lawful and whether the owner was fit and proper to hold a tattoo parlour licence.

The legal issues before the court included whether the Commissioner had the authority to refuse a licence renewal based on the owner's fitness and the public interest, and whether the Commissioner's decision was reasonable and supported by evidence. The court considered whether the Commissioner's decision was made in accordance with the relevant statutory provisions and whether it was open to the Commissioner to consider the owner's fitness and the public interest when deciding on a licence renewal.

The court found that the Commissioner had the authority to refuse a licence renewal based on the owner's fitness and the public interest. The court also determined that the Commissioner's decision was reasonable and supported by evidence. The court held that the Commissioner was entitled to consider the owner's fitness and the public interest when deciding on a licence renewal, and that the evidence supported the Commissioner's determination that the owner was not fit and proper to hold a tattoo parlour licence. Consequently, the court affirmed the Commissioner's decision.

Orders

Orders of the court

Respondent’s decision is 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:	Butler v Commissioner for Fair Trading [2017] NSWCATAD 138
Hearing dates:	15 March 2017
Date of orders:	01 May 2017
Decision date:	01 May 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Scahill, Senior Member
Decision:	Respondent’s decision is affirmed
Catchwords:	Tattoo parlours- not fit and proper-not in the public interest
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Crimes Act 1900 Evidence Act 1995 Tattoo Parlours Act 2012 Tattoo Parlours Regulation 2013
Cases Cited:	AJO v Director-General, Department of Transport [2012] NSWADT Allen v Commissioner for Fair Trading and Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 273 Austin v Commissioner for Fair Trading + Commissioner of Police, NSW Police Force [2015] NSWCATAD 244 Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Blissett v Commissioner of Police, New South Wales Police; Web Protection Australia Ply Ltd v Commissioner of Police, New South Wales Police [2006] NSWADT 114 Cali v Commissioner of Police [2007] NSWADT 187 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Clark v WorkCover Authority of New South Wales [2006] NSWADT 320, Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589 Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16 Council of the NSW Bar Association v Power [2008] NSWCA 135. Dessmann v Commissioner for Fair Trading & Anor [2015] NSWCATAD 255 Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 Director-General, Ministry of Transport v FV (GD) [2008] NSWADTAP 60 Department of Transport and Infrastructure v Murray [2011] NSWADTAP 16 Director General, Department of Transport v Z (No. 2) (GD) [2002] NSWADTAP 37 Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63 Dyas v Director-General Fair Trading & Commissioner of Police [2014] NSWCATAD 223 Ex Parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 Lal v Director-General, Department of Transport [2001] NSWADT 74 Melbourne v The Queen [1999] HCA 32; [1999] 198 CLR 1 Moore v Commissioner for Fair Trading and Commissioner of Police [2016] NSWCATAD 80 Obradovic v Commissioner for Fair Trading, Office of Fair Trading (GD) [2006] NSWADTAP 18 O'Donnell v Commissioner for Fair Trading [2016] NSWCATAD 166 O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 Pillai v Messiter [No.2] (1989) 16 NSWLR 197 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 Saadieh v Director General Department of Transport [1999] NSWADT 68 Smith v Commissioner of Police NSW Police Force & NSW Fair Trading [2014] NSWCATAD 184 Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Stevens v WorkCover Authority of…