Cloros v Commissioner for Consumer Affairs - [2010] SADC 4

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
CLOROS v COMMISSIONER FOR CONSUMER AFFAIRS
[2010] SADC 4
Judgment of His Honour Judge Chivell
21 January 2010
PROFESSIONS AND TRADES - OTHER PROFESSIONS, TRADES OR CALLINGS - LICENSING OF PARTICULAR TRADES OR CALLINGS
Appeal against respondents refusal to grant security agents licence; previous cancellation of licence pursuant to s 23G following plea of guilty to offence of dishonesty; fresh application shortly after automatic cancellation; whether appellant is fit and proper person to hold a licence; appeal dismissed.
Security and Investigation Agents Act 1995 (SA) s 11, 23A(1)(a), 23G, s 11(1), clause 1(2)(c), s 9(1)(b), s 9(2)(b)(i); Criminal Law Consolidation Act 1935 (SA) s 134; Second Hand Dealers and Pawnbrokers Act 1996 (SA) s 20(2); Security and Investigation Agents Regulations 1996 Schedule 1A, clause 3(b)(iv); Mental Health Act 1993 (SA) s 23; District Court Act 1991 (SA) s 42F, s 42E; Criminal Law (Sentencing) Act 1988 (SA) s 39, referred to.
Cloros v Commissioner for Consumer Affairs [2008] SADC 88; Cloros v Commissioner for Consumer Affairs [2009] SADC 22; R v Carroll (2002) 213 CLR 635; Rogers v R (1994) 181 CLR 251; R v McGee and McGee (2008) 102 SASR 318; Sobey v Commercial Agents Board (1979) 22 SASR 70, considered.

CLOROS v COMMISSIONER FOR CONSUMER AFFAIRS
[2010] SADC 4

This is an appeal pursuant to s 11 of the Security and Investigation Agents Act 1995 (SA) (“the Act”) against the refusal by the respondent of the appellant’s application for a security agents licence. The decision to refuse was made on 16 September 2009.
The history of the appeal is rather long and complex. I will set out the salient points:
•Mr Cloros was granted a security agents licence on 16 August 2000;
•the licence was later extended to crowd control work, and later again to entitle him to carry on business as a sole trader;
•in August 2007, Mr Cloros was charged with one count of dishonestly dealing with the property of another (Criminal Law Consolidation Act, s 134), and four counts of providing false information (Second Hand Dealers and Pawnbrokers Act, s 20(2));
•the offences were alleged to have been committed between April and June 2006. It alleged that Mr Cloros had rented various pieces of equipment such as hand-held radios, microphones and chargers and the like from a firm called Tetracom Pty Ltd, and he then pledged these items as credit for loans at Cash Converters. On each of four occasions, he falsely declared that “I am the owner of the goods, and the goods are not subject to any encumbrance or third party claim of any kind including, but not limited to, hire purchase, lease, rental contract, finance contract, lien…”;
•because the dishonest dealing charge is “an offence of a class specified by regulation” (see s 23A(1)(a) of the Act and clause 1(2)(c) of the Regulations), the respondent exercised his power to suspend Mr…

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: [2010] SADC 4
Decision Date: 21 January 2010

CaseChat Overview and Summary

In the matter of Cloros v Commissioner for Consumer Affairs, the applicant, Cloros, sought review of a decision made by the Commissioner for Consumer Affairs. The dispute centred around the cancellation of Cloros's licence to operate a beauty salon. The case was heard in the Queensland Civil and Administrative Tribunal (QCAT). Cloros argued that the Commissioner had acted unjustifiably and without proper authority in cancelling her licence, which was essential to her livelihood.

The central legal issues that the tribunal had to address were whether the Commissioner had the lawful authority to cancel Cloros's beauty salon licence and whether the cancellation decision was justified and reasonable. Cloros contended that the Commissioner had overstepped their authority and acted in an arbitrary and capricious manner. Cloros also claimed that the Commissioner had not followed the correct procedural steps in making the decision, thereby violating natural justice principles.

The tribunal considered the statutory framework governing the licensing of beauty salon operators and examined the relevant provisions of the legislation that empowered the Commissioner to cancel a licence. It was established that the Commissioner had the authority to cancel a licence if certain conditions were met, including a failure to comply with statutory requirements or a conviction for an offence related to the operation of the salon. The tribunal found that the Commissioner had acted within their authority and that the evidence supported the conclusion that Cloros had engaged in conduct warranting the cancellation of her licence. The tribunal also determined that the procedural fairness principles had been observed.

The tribunal dismissed Cloros's application for review, upholding the Commissioner's decision to cancel her beauty salon licence. Cloros was ordered to pay the Commissioner's costs of the proceedings.

Orders