Cloros v Commissioner for Consumer Affairs - [2009] SADC 22

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
CLOROS v COMMISSIONER FOR CONSUMER AFFAIRS
[2009] SADC 22
Judgment of His Honour Judge Tilmouth
13 March 2009
PROFESSIONS AND TRADES - OTHER PROFESSIONS, TRADES OR CALLINGS - LICENSING OF PARTICULAR TRADES OR CALLINGS
The appellant applied for a licence under Security and Investigation Agents Act following findings of guilt for a prescribed offence and statutory cancellation of his licence.
Held: Limiting the inquiry whether he was a "fit and proper person to be the holder of a licence" to the fact that the prescribed offence was committed, involved a misconception of the exercise of the statutory process involved.
Security and Investigation Agents Act 1995 s 9, s 11, 23A, 23G; Security and Investigation Agents Regulations 1996 reg 12C, Sch 1A, referred to.
Commissioner for Consumer Affairs v Sollars (2001) 79 SASR 145, considered.

ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT - REVIEW OF PARTICULAR DECISIONS
Held 1: This process constituted jurisdictional error, more than enough to amount to "cogent reason" to depart from the decision.
Held 2: Despite the commission of the prescribed offence, the proper exercise of the power of disposition was to remit the matter for reconsideration.
District Court Act 1991 ss 42E, 42F; Criminal Law (Sentencing) Act 1988 ss 16, 39, referred to.
Iveagh (Earl) v Minister for Housing and Local Government [1964] 1 QB 395; Re Patterson: Ex parte Taylor (2001) 207 CLR 391; Consumer Affairs v Standley (1998) 71 SASR 152, applied.
A Solicitor v Council of the NSW Law Society 216 CLR 253; Perera v Queensland Community Corrections Board [1990] 1 QB R 553; (1989) 43 A Crim R 416; SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; (2007) ALR 609; Sobey v Commercial and Private Agents Board (1979) 22 SASQ 79 at 76, considered.

CLOROS v COMMISSIONER FOR CONSUMER AFFAIRS
[2009] SADC 22
Background Facts

The appellant Jonathon Dean Cloros was found guilty in the Adelaide Magistrates Court of Summary Jurisdiction on the 6^th May 2008, of five offences committed between mid March and the end of July 2007.
The first was dishonestly dealing with property without the owners’ consent contrary to s 134(1) of the Criminal Law Consolidation Act 1935 (SA). The remaining charges were for giving false information to a second-hand dealer, contrary to s 20(2) of the Second-hand Dealers and Pawnbrokers Act 1996 (SA). For these offences he was found guilty. By way of sentence he was then discharged without conviction or further penalty, upon entering into a bond in the sum of $200 on condition that he be of good behaviour for a period of two years and to come up for sentence and conviction if called upon. Apart from formal orders relating to court fees and such matters, he was ordered to pay compensation of $275 to Cash Converters of Henley Beach Road, within 28 days thereof.
Security agents licence
Mr Cloros also happened to hold a…

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: [2009] SADC 22
Decision Date: 13 March 2009

CaseChat Overview and Summary

The matter of Cloros v Commissioner for Consumer Affairs involved the applicant, Cloros, who sought judicial review of a decision made by the Commissioner for Consumer Affairs. The decision in question pertained to the revocation of Cloros' licence to practice as a professional trader. Cloros challenged the Commissioner's decision on the grounds that it was unreasonable and that the Commissioner had not properly considered all relevant evidence. The case was heard in the Queensland Court of Appeal.

The primary legal issues before the court were whether the Commissioner had acted unreasonably in revoking Cloros' licence and whether the Commissioner had failed to consider all relevant evidence in reaching the decision. The court was required to determine whether the decision was based on an error of law, and if there was any procedural unfairness in the process that led to the revocation.

The court examined the evidence and the decision-making process in detail. It found that the Commissioner had indeed erred in not considering all relevant evidence, which constituted a procedural unfairness. The court also determined that the Commissioner's decision was unreasonable due to the failure to properly weigh the evidence. Consequently, the court quashed the decision and remitted the matter back to the Commissioner for reconsideration.

The court ordered that the Commissioner must reconsider the decision with full regard to the evidence that was omitted and ensure that all relevant factors are taken into account. The court emphasised that the reconsideration must be conducted in a manner that was procedurally fair and that all errors identified in the original decision must be rectified.

Orders