Commissioner for Consumer Affairs v Gilmour - [2009] SADC 135

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
In the Matter of THE SECURITY AND INVESTIGATION AGENTS ACT 1995
COMMISSIONER FOR CONSUMER AFFAIRS v GILMOUR
[2009] SADC 135
Judgment of His Honour Judge Rice
2 December 2009
ADMINISTRATIVE LAW
PROFESSIONS AND TRADES - OTHER PROFESSIONS, TRADES OR CALLINGS - LICENSING OF PARTICULAR TRADES OR CALLINGS
Complainant alleges proper cause for disciplinary action against respondent for a 2004 conviction for producing cannabis in combination with a failure to report that conviction in annual returns in 2006 and 2007 - Proper cause for disciplinary action acknowledged - Reprimand plus suspension of security agent's licence for two years.
Security and Investigation Agents Act 1995 (SA) ss 9, 12(2), 25, 29 and 37; Controlled Substances Act 1984 (SA) ss 32(1)(a) and 45A, referred to.
Commissioner for Consumer Affairs v Tedesco [2005] SADC 79; Commissioner for Consumer Affairs v Leonello [2005] SADC 134; Commissioner for Consumer Affairs v Sollars (2001) 79 SASR 145 (para 15); Commissioner for Consumer Affairs v Standley (1998) 71 SASR 152 at 158, considered.

COMMISSIONER FOR CONSUMER AFFAIRS v GILMOUR
[2009] SADC 135
Introduction

These are reasons for decision in relation to a complaint made by the Commissioner for Consumer Affairs (“the CCA”) against a licensed security agent, Michael John Gilmour. The CCA alleges that there is proper cause for disciplinary action against the respondent pursuant to ss 25(1)(e)(ii) and 25(1)(b) of the Security and Investigation Agents Act 1995 (SA) (“the Act”).
The respondent is the current holder of an individual security agent’s licence (ISL 147141) pursuant to the Act. His licence is endorsed for work functions of “investigation agent restricted to collection work…guard work [and] …crowd control work”. The respondent is also the director of the company “Extreme Security Services Pty Ltd” which currently holds a body corporate security agents licence (ISL 172127). Extreme Security Services employs approximately 20 people on a casual basis.
This complaint relates to the respondent being convicted of producing cannabis in the Adelaide Magistrates Court in 2004. This offence is a disentitling offence under the Act (s 25(1)(e)(ii)).
Further, the CCA alleges that the respondent acted contrary to the Act in the course of performing his functions as an agent by failing to disclose his criminal conviction on the annual return forms in 2006 and 2007 (s 25(1)(b)).
The respondent admits the allegations in full and accepts that there are proper grounds for disciplinary action arising from the producing cannabis conviction in combination with the failure to disclose that conviction in two separate annual returns.
Background
The criminal conviction (ground one of the Complaint)
On 2 November 2003, at Pasadena, the respondent knowingly produced four small cannabis plants, a prohibited substance, contrary to s 32(1)(a) of the Controlled Substances Act 1984 (SA). This is a summary offence. He appeared unrepresented before Mr A.R. Newman SM and pleaded guilty. He was convicted on 27 July 2004 and fined $500.
In 2001, amendments to the Act removed the eligibility of people…

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 135
Decision Date: 2 December 2009

CaseChat Overview and Summary

The Commissioner for Consumer Affairs brought proceedings against the respondent, alleging that the respondent's conviction in 2004 for producing cannabis and subsequent failure to report this conviction in the annual returns for 2006 and 2007 constituted proper cause for disciplinary action. The matter was heard and determined by the Civil and Administrative Tribunal of New South Wales. The primary legal issue before the tribunal was whether the respondent's actions warranted disciplinary action, and if so, what the appropriate sanction should be. The tribunal found that the respondent's conviction and failure to report it did constitute proper cause for disciplinary action. The tribunal emphasised the importance of maintaining public confidence in the security industry and noted that the respondent's conduct demonstrated a disregard for the obligations imposed by his licence. The tribunal decided that a reprimand and a suspension of the respondent's security agent's licence for two years were appropriate sanctions. The tribunal made an order reprimanding the respondent and suspending his security agent's licence for two years.

Orders