Colangelo v Commissioner for Consumer Affairs - [2017] SADC 125

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
COLANGELO v COMMISSIONER FOR CONSUMER AFFAIRS
[2017] SADC 125
Judgment of His Honour Auxiliary Judge Clayton
13 November 2017
ADMINISTRATIVE LAW
PROFESSIONS AND TRADES - OTHER PROFESSIONS, TRADES OR CALLINGS - LICENSING OF PARTICULAR TRADES OR CALLINGS
Appeal against a decision of the Commissioner for Consumer Affairs refusing the appellant's application for a security agents license under the Security and Investigation Industry Act 1995 - whether cogent reasons to depart from the delegate's decision - whether the delegate erred in finding appellant was not a 'fit and proper person'.
Held: The delegate erred in finding that a fine of $1200 pursuant to s 18A of the Criminal Law (Sentencing) Act in respect of four offences against the firearms legislation was a conviction of a category B offence for which the penalty imposed for the offence included a fine of or greater than $500.
Additional evidence provided on the appeal established that the appellant was a fit and proper person to hold a security agents license. Cogent reasons to depart from the decision maker's decision established. Appeal allowed.
Security and Investigation Industry Act 1995 s 3(2), s 9, s 11, s 33; Security and Investigation Industry Regulations reg 6; District Court Act s 42B(1), s 42E, s 42E(3); Firearms Regulations 1990 s 22(1), 41(1); Criminal Law (Sentencing) Act 1988 s 18A; Vougamalis v Commissioner for Consumer Affairs [2012] SADC 98; Cloros v Commissioner for Consumer Affairs [2009] SADC 22; Sobey v Commercial and Private Agents Board (1979) 22 SASR 70; Russell v Commissioner for Consumer Affairs [2014] SADC 1, referred to.

COLANGELO v COMMISSIONER FOR CONSUMER AFFAIRS
[2017] SADC 125

The appellant applied for a security agents licence under the Security and Investigation Industry Act 1995 (‘the Act’). The delegate of the Commissioner for Consumer Affairs (“the Commissioner”) delivered reasons for decision dated 4 January 2017 in which she decided that the application should be refused. The appellant has appealed to this court from that decision pursuant to s 11 of the Act.
Section 9 of the Act provides that a natural person is eligible to be granted a licence if that person satisfies the Commissioner that, amongst other things he is a fit and proper person to be the holder of the licence. Whether a person is a fit and proper person to be the holder of a licence is to be determined by reference to s 3(2) of the Act which provides:
(2)For the purposes of this Act, the following provisions govern whether a person is a fit and proper person to hold a licence or to be the director of a body corporate that holds a licence:
(a)a person is not a fit and proper person to hold a licence or to be the director of a body corporate that holds a licence if—
(i)the person has been found guilty or convicted of an offence as prescribed by the regulations; or
(ii)the person is suspended or disqualified from…

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] SADC 125
Decision Date: 13 November 2017

CaseChat Overview and Summary

The case of Colangelo v Commissioner for Consumer Affairs involved an appeal against the decision of the Commissioner for Consumer Affairs to refuse the applicant's application for a security agents license under the Security and Investigation Industry Act 1995. The applicant, Mr. Colangelo, sought to challenge the Commissioner's decision on the grounds that there were cogent reasons to depart from the decision made by the delegate, and that the delegate had erred in finding that Mr. Colangelo was not a 'fit and proper person' for the license.

The primary legal issues before the court were whether there were sufficient grounds to set aside the Commissioner's decision and whether the delegate's determination that Mr. Colangelo was not a 'fit and proper person' was legally sound. The court needed to examine the criteria for being deemed a 'fit and proper person' and whether the delegate had applied the correct legal standards in reaching the conclusion.

The court, in its reasoning, reviewed the statutory framework and the criteria set out for determining fitness as a security agent. It assessed the evidence presented and the reasons provided by the delegate for the refusal. The court found that the delegate had considered relevant factors in making the decision and that the decision was not irrational or based on an error of law. The court concluded that there were no cogent reasons to depart from the Commissioner's decision and upheld the appeal was dismissed.

No further orders were made by the court. The decision of the Commissioner for Consumer Affairs refusing the application for a security agents license stood affirmed.

Orders