Cloros v Commissioner for Consumer Affairs
[2009] SADC 22
•13 March 2009
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 22Background Facts
The appellant Jonathon Dean Cloros was found guilty in the Adelaide Magistrates Court of Summary Jurisdiction on the 6th 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 security agents licence at that time under the Security and Investigation Agents Act 1995 (SA) (the Act). The Act was substantially amended in 2005, with the new provisions coming into force on the 8th December 2005.[1] Amongst other things these amendments provided a much stricter regime for the regulation of the security industry in general, and in particular for the administrative cancellation of licences when agents were charged, found guilty or convicted of offences prescribed by regulation. These amendments were designed:
“… to protect the public by regulating who may engage in the activities for which a licence is required. The focus is on the protection of the public by requiring applicants to meet criteria directed to their qualification, experience and fitness for the occupation.”[2]
[1] Statutes Amendment (Liquor Gambling and Security Industries) Act no 22 of 2005 and SA Government Gazette 8/12/05 p 4195
[2] Commissioner for Consumer Affairs v Sollars (2001) 79 SASR 145 at 147 [14]
Mr Cloros held various licences since August 2000. These enabled him to act as a security agent and perform guard duties, initially limited to his capacity as an employee, and since the 16th September 2002 as a sole trader.
Because of the charges brought before the Magistrates Court, a delegate of the Commissioner of Consumer Affairs suspended his licence on the 24th September 2007 pursuant to s 23A of the Act. That section provides:
23A—Circumstances in which Commissioner may suspend security agents licence
(1) Subject to section 23B, if—
(a)the holder of a security agents licence, or a director of a body corporate that is the holder of a security agents licence, is charged with an offence of a class specified by regulation in relation to the functions authorised by the licence; or
(b)the Commissioner is satisfied, for any other reason, that it would be contrary to the public interest if the holder of a security agents licence were to continue to be licensed,
the Commissioner may, by notice in writing to the holder of the licence (a suspension notice), suspend the licence for a specified period or until further notice.
(2) Suspension of a licence under this section takes effect immediately on service of a suspension notice advising that the licence has been suspended.
(3) A person on whom a suspension notice has been served may, within the period of 21 days following service of the notice, make written representations to the Commissioner as to why his or her security agents licence should not be suspended.
(4) The Commissioner must, at the end of the period of 28 days following service of a suspension notice under this section—
(a) confirm or revoke the suspension; and
(b)advise the holder of the licence in writing of the Commissioner's decision; and
(c)if the holder of the licence has surrendered the licence and the Commissioner's decision is to revoke the suspension—return the licence to the holder of the licence.
(5) The Commissioner must, in determining whether to confirm or revoke suspension of a security agents licence, have regard to any representations received from the holder of the licence under subsection (3).
(6) The Commissioner may, at any time, on his or her own initiative, or on application by a person whose licence is suspended, revoke the suspension of a security agents licence under this section.
For the purposes of s 23A the notice of suspension nominated the offence of “dishonestly deal with property without the owners’ consent”, which it went on to state, was:
… an offence within the meaning of clause 1(2) of Schedule 1A of the Regulations. This offence is serious in nature and involved dishonesty in respect to property and as such is of relevance to the functions carried out by a security agent.
Regulation 12C of the Security and Investigation Agents Regulations 1996, in force at the time provided:
12C—Specified classes of offences
For the purposes of section 23A(1), 23B(1) and 23G(1) of the Act, the classes of offences set out in Schedule 1A are specified.
Schedule 1A read:
Schedule 1A—Classes of offences (Regulation 12C)
1—Offences for the purposes of section 23A
(1) For the purposes of section 23A(1)(a) of the Act, an offence to which this subclause applies is prescribed in relation to the following functions authorised by a licence:
(a) controlling crowds;
(b) protecting or guarding a person or property;
(c) installing or maintaining security alarm or surveillance systems.
(2) Subclause (1) applies to the following offences:
(a) an indictable offence;
As an offence under s 134(1) of the Criminal Law Consolidation Act carries a maximum penalty of 10 years imprisonment, it comes within the definition of an “indictable offence” according to s 5 of the Summary Procedure Act 1921 (SA), and as such is picked up by s 23A of the Act through Schedule 1A(2)(a). In contrast, as s 20(2) Second-hand Dealers and Pawnbrokers Act attracts a maximum fine of $10,000, it is a summary offence, so it is not caught by s 23A.
The suspension was reviewed and confirmed on the 24th October 2007, as required by s 23A(4). Thus simply being charged with a specified offence, was enough to cause the licence to be suspended automatically by force of statute.
The proceedings in the Magistrates Court
When the matter came before a Magistrate, it was initially listed by way of pre-trial conference. For one reason or another Mr Cloros, who was unrepresented, pleaded guilty and received the above penalty. So far as can be judged from the material before the Commissioner and subsequently the Court, the allegations were that in March 2007 he rented from a company named Tetracom, five radios, chargers, power boards and microphones, together valued at $4,804.50. A rental agreement was alleged to have been signed by him in the presence of an employee of that organisation.
The police apprehension report suggest that he stopped making payments under the agreement and that the property was never recovered by Tetracom. Indeed it appears from the papers that Cash Converters eventually sold the goods, leaving a shortfall owing to them of $275. The charges did not otherwise impinge upon what remained owing to Tetracom, except of course to the extent that count 1 exposed a dealing inconsistent with its rights over the subject property. He was then alleged to have lodged the property as security for a loan or loans with Cash Converters. On four occasions between late April and late July 2007 he is alleged to have represented to them that he was the owner of the property; these representations formed the foundation for the remaining four charges.
It is not clear on what factual basis the Magistrate sentenced Mr Cloros. Although the court file is available, there are no sentencing remarks, clerk’s notes or file endorsements indicating exactly what Mr Ackland SM said during the sentencing process, what the prosecutor alleged and what precisely Mr Cloros admitted or put forward in mitigation. One thing for certain is that his Honour must have proceeded pursuant to s 39 of the Criminal Law (Sentencing) Act 1988 (SA), because finding Mr Cloros guilty of the respective offences and then making an order discharging him without conviction on a bond to “appear before the court for sentence”, can only be achieved under that section, and only then if “good reason exists for doing so”. It also seems evident that the order for payment of compensation of $275, reflected what was owed to Cash Converters on the balance of the loan(s).
Mr Cloros maintained in this court that he was making regular payments to Tetracom, although the precise arrangements and the amount owing were not specified. It would be surprising if the arrangement was not some form of purchase, hire-purchase or rental situation. The probabilities seem to be that ownership of the goods would not have transferred to him until full payment for the goods in question was made. In any case Tetracom would certainly have held some kind of security over the goods by way of a charge or a lien until then.
According to the police apprehension report, Mr Cloros acknowledged renting the property but did not agree with “the rental sum”. He also said the he “did not steal the property or deal with it dishonestly because he was a security guard”, whilst admitting at the same time that he was “broke”, needed the money and was “going to pay it back”. Likewise he said several times in the proceedings before this court that he always intended to repay Tetracom.
To found the charge of theft it was necessary, at the very least, for Mr Cloros to have made a “serious encroachment on the owner’s proprietary rights”. This he did by leaving the rented goods as security with Cash Converters. The basis of the other four counts must have been that he represented to Cash Converters it was his unencumbered property.
A plea of guilty constitutes an admission of all the essential elements of those offences: Maxwell v The Queen[3] and Meissner v The Queen.[4] If the Magistrate hearing the matter was given a version of the facts inconsistent with guilt, he was duty bound to refuse to accept the plea, so he must have been satisfied on whatever version Mr Cloros presented to him, that the offences were made out.
[3] (1996) 184 CLR 501
[4] (1995) 184 CLR 132
A fresh application for a licence
Following the proceedings before the Magistrate, a notice dated 12 May 2008 was sent to Mr Cloros. It cited the finding of guilt in relation to the theft charge and noted it was a specified offence. As such it purported to cancel his licence pursuant to s 23G of the Act. Section 23G provides for the automatic cancellation of a licence under the Act upon a security agent being “found guilty of an offence of a class specified by regulation …”. Regulation 3(iv) to Schedule 1A specifically prescribes the offence of theft for the purposes of s 23G.
Mr Cloros then appealed to the District Court against the cancellation. However that was dismissed on the basis that there was no right of appeal, since the cancellation was statutory as opposed to administrative.[5] Not to be deterred, Mr Cloros applied for a fresh licence on 15 July 2008. On 7 August 2008 the Commissioner of Police filed a notice of objection as he was entitled, under s 8A(3) of the Act. This cited the above offences in support of the objection.
[5] Cloros v Commissioner for Consumer Affairs [2008] SADC 88, Judge Cole
Refusal of agents licence
Ultimately on the 1st September 2008 Mr Cloros was advised in writing of the decision to refuse his application. It is from this decision that he appeals to this court. This letter annexed “reasons for decision”. They cite the provisions of s 9(1)(d) of the Act as the ground of refusal, namely that he was not “a fit and proper person to be the holder of the licence …”. The reasons went on to identify the offence referred to above, being of a class prescribed in clause 3 to Schedule 1(A) of the regulations.
Section 9 of the Act has at its pivot, the requirement to be a “fit and proper person”. There is no discretion to grant a licence once the disqualifying criteria are satisfied: Commissioner for Consumer Affairs v Standley.[6] Section 9(1)(b) prohibits a person convicted of an offence specified by regulation from qualifying for a licence. This stands in contrast with s 23A and s 23G of the Act, which are enlivened to effect statutory suspension and cancellation respectively, on being charged or the mere finding of guilt, with respect to prescribed offences.
[6] (1998) 71 SASR 152 at 158
The appeal to this court
Section 11(1) of the Act supplies the jurisdiction of the court to hear an appeal from the decision to refuse a licence. The powers the court exercises in entertaining such appeals are those contained in Part 6, Division 2 of the District Court Act 1991 (SA). The court is invested with the power to affirm or rescind the decision under appeal, or to remit the matter to the original decision maker “in accordance with any directions or recommendations of the Court”.[7] It cannot however, “depart from the decision except for cogent reasons”.[8]
[7] Section 42F(c)
[8] Section 42E(3)
The fact of the pleas of guilty and the nature of the offences were matters properly taken into account by the delegate of the Commissioner. Despite the fact that Mr Cloros was found guilty of those offences, there is no automatic disqualification or disentitlement to gain a license as there would be in the case of conviction. The application therefore fell to be determined according to the criteria specified in s 9. In this instance the relevant statutory inquiry was whether he was “a fit and proper person to be the holder of the licence”: s 9(1)(d).
The criteria to hold a licence under the Act
At first sight it appears to be somewhat anomalous that a person found guilty of a prescribed offence and therefore the subject of statutory cancellation under s 23G, can then effectively by-pass the cancellation by applying to reinstate the licence by the mere device of bringing a fresh application for a new licence. Be that as it may, the Act maintains a clear dichotomy between a finding of guilt on the one hand (s 23G) and conviction on the other (s 9(1)(b)). The only rational way of accounting for the distinct difference in wording and resolving the potential for tension in the operation of the two provisions, is to read s 9 as permitting a small window of residual discretion to grant a licence despite the commission of a prescribed offence, for which no conviction is recorded. There is some sense in this as the courts are only entitled to proceed to sentence an offender without proceeding to a conviction within narrow confines, such as the trifling or extenuating circumstances of the offence, or where, as in this case, “good reason exists for doing so”: s 16 and 39 Criminal Law (Sentencing) Act, respectively.
The decision of the delegate
What is not so clear is the factual basis on which the delegate acted upon in refusing the application. No doubt the delegate properly took into account the fact that these charges were in the nature of a dishonesty offence. It is by no means clear whether he considered the theft involved property to the value of $4,804.50 or $275, whether Mr Cloros intended to pay for them or not, or whether he genuinely believed he owned the goods or not. The answers to such inquiries could have a significant bearing on the seriousness of the offences, upon the degree of dishonesty involved and hence fitness to hold a licence.
The operative portions of the delegates reasons for decision of 1 September 2008, were these:
Section 9 of the Act provides:
“Entitlement to be licensed
(1) Subject to section 9A, a natural person is entitled to be granted a licence if - …
(d) the person is a fit an proper person be the holder of the licence; …”
Information provided to the Commissioner for Consumer Affairs by the South Australia Police indicates that Mr Cloros has been found guilty of the following offences, which are relevant to the duties of a security agent:
. Dishonestly deal with property without owners consent; and
. False information or document to a second-hand dealer.
In addition Mr Cloros recently had a security agents licence cancelled as he was found guilty of the above offences, which are offences of a class prescribed in clause 3 of schedule 1A of the Security and Investigation Agents Regulations 1996.
Mr Cloros lodged a submission to the Commissioner on 15 August 2008 in relation to his offences and, fitness and propriety. In this submission, he did not accept that his action were wrong that lead to the findings of guilt for his offences.
As Mr Cloros has recently been found guilty of prescribed offences that lead to the mandatory cancellation of his security agents licence and that he continues to assert that his actions were not wrong, I do not consider him a fit and proper person to be the holder of a security agents licence at this time.
In reaching this determination I have considered the information provided by Mr Cloros, the purpose of the Security and Investigation Agents Act, and the need to maintain the public confidence in both the industry and the licensing scheme.
Pursuant to section 9(1)(d) of the Act in relation to the functions to be performed under authority of the licence, the applicant is not entitled to be granted a licence.
The application is refused.
It is clear from these reasons that the delegate regarded the nature of the offences, in and of themselves as sufficient to preclude the appellant from being a “fit and proper person”. Since a finding of guilt is not of itself a bar to holding a licence, the question whether a person is “fit and proper” cannot be determined solely from the nature of the offence committed (whether prescribed or not), because that may have been trifling, or committed under extenuating circumstances and the like. It is to the facts and circumstances underlying the offence to which attention must be directed, before an informed judgment can be made as to whether a person is “fit and proper” to hold a licence.
The delegate did not embark upon that exercise. No factual basis was identified in the reasons, other than the commission of the offence, and no decision was made as to what version of the events he acted upon. The reasons disclose the nature of offences were considered sufficient to automatically disqualify Mr Cloros from being a fit and proper person. Moreover the reasons exhibit significant factual error. Only the theft charge was “of a class prescribed in clause 3 of Schedule 1A”, and he was only found guilty of a single prescribed offence.
Error in the decision-making process?
As indicated above, Parliament must have had in mind a small class of cases involving the commission of prescribed offences, which would not necessarily prevent the offender from qualifying for a licence. In that situation automatic disqualification on account of the commission of a prescribed offence alone, would render nugatory the residual discretion vested under s 9, in those cases where convictions were not entered.
Ever since Iveagh (Earl) v Minister of Housing and Local Government[9] the requirement to make adequate findings of fact has been accepted in administrative law, since:
(T)he whole purpose of the enactment to enable the parties and the court to see what matters he has taken into consideration and what view he has reached on the points of fact and law which arise. If he does not deal with the points that arise, he fails in his duty, and the court can order him to make good the omission. I regret therefore that the Minister did not state expressly what his view was on this point of construction and did not find expressly the facts in relation to that point."
This passage was cited with approval by the court of Appeal in Perera v Queensland Community Corrections Board.[10]
[9] [1964] 1 QB 395 at 410 per Lord Denning MR
[10] [1990] 1 QB R 553; (1989) 43 A Crim R 416
The situation here is akin to that in Re Patterson: Ex parte Taylor.[11] The High Court in that case quashed a decision of a Parliamentary Secretary purporting to cancel an immigration visa based on a suspicion that the applicant did not pass the "character test" provided for by s 501(6) of the Migration Act 1958 (Cth) and on being satisfied the cancellation was in the national interest. Section 501(6) provided a person did not pass the character test if the person had a “substantial criminal record”, an expression defined in s 501(7) to mean a sentence of imprisonment of twelve months or more. The sentence in question was three and a half years on convictions for sexual offences.
[11] (2001) 207 CLR 391, effectively overruled in Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 on another point (alien absorption into the community)
In their joint judgment, Gummow and Hayne JJ[12] remarked that in point of principle, jurisdictional error occurs upon the constructive failure to exercise the power reposed and such error materialises upon a misconception of what in law was involved in the exercise of that power, citing Sinclair v Maryborough Mining Warden.[13] The case in their opinion turned on a procedural question, as the legislation required "an opportunity to make representations seeking revocation of [that] decision", which was not furnished. Accordingly their Honours considered:[14]
The result of this misconception as to what the exercise of the statutory power entailed was that there was, in the meaning of the authorities, a purported but not a real exercise of the power conferred by s 501(3).
Kirby J also resolved this part of the case on the failure to afford an opportunity to be heard.[15]
[12] At [189], Gleeson CJ concurring in relevant respects
[13] (1975) 132 CLR 473 at 483
[14] At [196], Gaudron J at [83] and McHugh J at [87], concurring
[15] At [340]
However Gaudron J considered there was an additional reviewable error of another kind in the decision making process:
[82] A decision-maker falls into jurisdictional error if he or she misunderstands the nature of the jurisdiction to be exercised, misconceives his or her duty, fails to apply himself or herself to the question to be decided or misunderstands the nature of the opinion which he or she is to form [Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 208-209 [31]]. By failing to appreciate that it was necessary for there to be something in the nature or seriousness of Mr Taylor's criminal convictions or in the circumstances in which his crimes were committed before she could be satisfied that it was in the national interest to cancel his visa, the Parliamentary Secretary misconceived her duty, failed to apply herself to the question to be decided and misunderstood the nature of the opinion she was to form.
The decision-maker in this case misconstrued what was involved in the exercise of the power reposed in him under s 9(1)(d) of the Act by regarding the offences as definitive of the issue. In addition the decision is tainted by factual error. This conclusion is more than enough to supply “cogent reason” to depart from the subject decision. The terms of s 9 of the Act make it clear that the “fit and proper person” considerations are separate and distinct from the question whether prescribed offences were committed, so that issue had to be considered separately. The delegate in this case has merged the two and has thus fallen into jurisdictional error. To adopt the language of Gaudron J in Re Patterson quoted above, it was necessary to appreciate there was something in the nature or seriousness of the circumstances of the offences, before he could be satisfied Mr Cloros was not a fit and proper person to be licensed.
The situation is equally akin to that in A Solicitor v Council of the NSW Law Society[16] which involved a solicitor found guilty of professional misconduct. He was found not to be a “fit and proper person to be a legal practitioner” and consequently struck off the roll of practitioners of the Supreme Court of New Wales.[17] That conclusion was reached in the Court of Appeal in light of his convictions on four counts of aggravated indecent assault on a person under the age of 16 years. In relation to those his sentence was eventually deferred, on condition that he enter into a recognizance to be of good behaviour for three years.
[16] 216 CLR 253
[17] The Council of the Law Society of New South Wales v A Solicitor [2002] NSWCA 62
The unanimous judgment of five members of the court identified the principal question as whether misconduct constituted by the offences, either alone or in combination with other identified professional misconduct, demonstrated that the appellant was not a fit and proper person to be a legal practitioner.[18] In setting aside the decision, the court considered the issue should be resolved only after a close consideration of the facts, and in the circumstances that “insufficient weight [was given] to the isolated nature of the offences and the powerful subjective case made on behalf of the Appellant.”[19] Here the delegate did not examine the facts in any detail and nor did he consider the case for Mr Cloros.
[18] At [35] Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ
[19] At [37]
Disposition of the appeal
That being the case, the court would ordinarily be disposed to remit the matter because of the significant errors. The court is empowered by s 42F of the District Court Act 1991 (SA) either to affirm or rescind the decision, to substitute a decision the court considers appropriate, or remit the matter to the decision maker for consideration “in accordance with any directions or recommendations of the court”. The section clearly confers an unfettered discretion to take any of these courses. It is not appropriate to substitute this court’s own view, because the underlying facts have not been established. Even if error is demonstrated, the court may as a discretionary matter, decline to remit or rescind, it if it would be futile to do so.
The pleas of guilty before an experienced Magistrate must have been on the basis that Mr Cloros accepted that he had at least an intention to deal with the property inconsistent with the owners’ rights and that he told Cash Converters he owned that property. Otherwise the Magistrate could not have accepted his pleas of guilty. In any case the Commissioner is required, just as the court is, to act on the face of the public record, which records findings of guilt in relation to the necessary elements of those offences: s 43 of the Evidence Act 1929 (SA).
The decision of the High Court in SZBYR v Minister for Immigration and Citizenship[20] authoritatively establishes that relief would be inevitably refused as a matter of discretion, when there is no practical utility in remitting a decision. The joint judgment of Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ[21] indicates this will be the situation when:
…no useful result could ensue from the grant of the relief desired by the appellants…because….[their] case was one in which "irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse": Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [58], 75 ALJR 52.
Of course as Kirby J indicated in that case: [22]
… discretionary refusal of judicial review must be exercised with care, particularly where the hypothesis of jurisdictional error is a possibility… in some such cases (of which this was one) invocation of the discretion is proper, prudent, economical and just.
[20] (2007) 81 ALJR 1190; (2007) 235 ALR 609
[21] At [29]
[22] At [87] and see Hayne J at [91-92] to a similar effect
The circumstances are such to enliven the application of the “fit and proper person” test to Mr Cloros. But whether the facts turn out to demonstrate that the nature or seriousness of his offending is inimicable to the proper discharge of the functions of a security and investigations agent, is a matter to be determined on a duly informed basis consistent with these reasons. The focus of that enquiry is whether he meets the criteria of s 9, directed to his qualifications, experience and fitness for the occupation: Commissioner for Consumer Affairs v Sollars.[23] As Walters J explains in Sobey v Commercial and Private Agents Board:[24]
… an applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of the particular licence under the Act, but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails.
[23] (2001) 79 SASR 145 at [13]
[24] (1979) 22 SASR 70 at 76
These are now matters for the consideration and assessment of the Commissioner for Consumer Affairs or his duly authorised delegate.
Orders
The formal order of the court therefore is that the appeal instituted by Mr Cloros on the 3rd September 2008 against the decision of a delegate of the Commissioner for Consumer Affairs of the 1st September 2008 refusing his application for a licence under the Security and Investigation Agents Act, is allowed to the extent that it will be remitted for reconsideration according to law consistent with these reasons. As there are no unusual or out of the ordinary features of the case, there will be no order as to costs.
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