Commissioner for Consumer Affairs v Boynton No. Dcaat-00-206

[2000] SADC 106

COMMISSIONER FOR CONSUMER AFFAIRS -v- BOYNTON
[2000] SADC 103

Judge Anderson
Administrative & Disciplinary Division

1. Basil Elvin Boynton (“the Respondent”) was granted a Commercial and Private Agents Licence on 6 January 1996 pursuant to the provisions of the Commercial and Private Agents Act 1986.

2. Presently, the Respondent holds a Security and Investigation Agents Licence granted pursuant to the provisions of the Security and Investigation Agents Act 1995 (“the Act”) with endorsements restricted to Collection Work, Inquiry Work, Guard Work, Crowd Control Work and Canine Handling, all as an Employee.

3. By a Complaint filed on 24 May 2000 the Commissioner for Consumer Affairs (“the Complainant”) alleges that there is proper cause for disciplinary action against the Respondent.

4. It is agreed that on 24 February 1999, upon his plea of guilty, the Respondent was convicted in the Magistrates Court of South Australia of the offence of assault occasioning actual bodily harm.  It is also not in dispute that the Respondent was thereupon sentenced to nine months imprisonment, which sentence was suspended upon him entering into a bond to be of good behaviour for a period of two years.  There is no suggestion, in the time since February 1999, that the Respondent has been other than of good behaviour.

5. It is also not in dispute that the Respondent kept the Commissioner fully informed about his circumstances, both before and after his conviction.

6. The offence for which the Respondent has been convicted is a minor indictable offence and as such is prescribed by the regulations made pursuant to the Act as preventing a successful application for a licence under the Act: see s9(1)(b).  It follows that, were the Respondent to have applied for a licence subsequent to that conviction, he would be ineligible to have his application granted.

7. Because of this fact, the provisions of s25(1)(e)(ii) of the Act come into effect to deem that there presently exists proper cause for disciplinary action against the Respondent.  The range of available disciplinary action is set out in s29(1) of the Act.

8. The Complainant seeks that there be an order cancelling the Respondent’s licence pursuant to s29(1)(c)(iii) of the Act.

9. This submission is based upon the premise that there should be a relationship between the imposition of an order pursuant to s29(1) and the entitlement provisions in s9 of the Act.  Because it was held in Commissioner for Consumer Affairs v Standley (1998) 71 SASR 152 that there was no discretion in the Commissioner where objective criteria (such as s9(1)(b)) were involved, it is submitted that the Respondent, not being a person presently entitled to be licensed, should have his licence cancelled as the appropriate disciplinary action. That was a case where the initial issue of a licence was refused.

10. I was also referred to the decision in Commissioner for Consumer Affairs v Jeffries [1999] SADC 107 where, in proceedings brought pursuant to the Building Work Contractors Act 1995, a licence was cancelled where objective disentitling criteria then existed.

11. The personal circumstances of the Respondent, as given without objection from the Bar table, are extreme.  He is married and is responsible for at least four children.  Two of these have ongoing medical problems requiring medication.  This is paid for by the Respondent.  Two others require assistance because of learning difficulties.  These are presently being met by the provision of after school tuition also paid for by the Respondent.

12. Within recent days, his wife has had an operation and, whilst now at home, is not able to undertake her usual domestic tasks.  Consequently, these are being undertaken by the Respondent, in addition to his employment.

13. The Respondent is the only breadwinner in the household.  He has held his present employment as a night patrolman and static guard for about a year.  A contemporary reference from his employer indicates that he is held in high regard.  Should his licence be cancelled then he must give up this employment.  He has no other recent work experience.

14. I note, notwithstanding that the Complainant had notice of the Respondent’s conviction at the time it was recorded, that a period of 15 months was allowed to elapse before these proceedings were instituted.  In addition, I take it from what I was told by Ms Dellit of counsel for the Complainant (Tp3 line 19) that the Respondent’s licence has been renewed on at least one occasion whilst the Complainant was aware of his conviction.

15. I accept that the work which the Respondent presently undertakes does not involve any form of crowd control, which was the work being undertaken by him at the time of the incident leading to his conviction.

16. Whilst it is correct that were the Respondent presently to apply for a licence he would be unable to be licensed because of his conviction, I am not persuaded that his licence should now be cancelled simply because of that fact when that licence has apparently been renewed since the conviction, with knowledge of it, and when more than half of the period of his bond has elapsed without further incident.  In a very real subjective sense to do so is a significant further penalty to him.  Such an order goes far beyond the protection of the public in its ramifications.

17. Section 29(1) of the Act allows, by a combination of sub‑sections (c)(i) and (e), for the variation of the conditions which attach to a licence.  In this case, where I take notice of the fact that without employment the Respondent will be unable to care for his family as he does, thus possibly placing his sons at some social risk, there will be no lapse in the protection of the public, which is the aim of the disciplinary provisions of the Act, if the conditions which attach to the licence of the Respondent are varied and further limited so as to keep him away from crowd control circumstances whilst enabling him to maintain employment.  Such a conclusion is not at odds with the purpose of the Act insofar as it seeks to protect the public by establishing a licensing system governed by stated criteria.

18. Accordingly, pursuant to s29(1)(c)(i) and (e) of the Act, I order that the Respondent’s licence be varied by prohibiting him from being able to undertake work as an Investigation Agent restricted to Collection work as an Employee, as an Investigation Agent restricted to Inquiry work as an Employee or as a Security Agent restricted to Crowd Control work as an Employee.

19. I shall hear counsel as to any further necessary order.