Commissioner for Consumer Affairs v Hurst - [2008] SADC 119

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
In the Matter of SECURITY & INVESTIGATION AGENTS ACT 1995
COMMISSIONER FOR CONSUMER AFFAIRS v HURST
[2008] SADC 119
Judgment of Her Honour Judge Trenorden, Assessor Ms J Hutchinson and Assessor Mr H Klavins
26 September 2008
PROFESSIONS AND TRADES - OTHER PROFESSIONS, TRADES OR CALLINGS - LICENSING OF PARTICULAR TRADES OR CALLINGS - DEALERS
Security and Investigation Agents Act 1995 - Licence held - Criminal offence committed - Conviction while holding licence - Failure to notify fact of conviction - Application to cancel licences - Whether respondent dishonest in annual returns - Public expectations.
HELD: Licence cancelled. No fine imposed.
Security and Investigations Agents Act 1995; Security and Investigations Agents Regulations 1996; Controlled Substances Act 1984; Criminal Law (Sentencing) Act 1988, referred to.
Commissioner for Consumer Affairs v Sollars [2001] SASC 110; De Freitas v Commercial Tribunal 1416 of 1989, judgment delivered 1 December 1989, considered.

COMMISSIONER FOR CONSUMER AFFAIRS v HURST
[2008] SADC 119
THE COURT DELIVERED THE FOLLOWING JUDGMENT:

The respondent, Mr John Hurst, has held a security agents licence endorsed “security agent restricted to guard work as an employee” under the Security and Investigation Agents Act 1995 (the Act) since 10 July 2000. Further endorsements in relation to work functions of “security agent restricted to crowd control work as an employee” and “security agent restricted to canine handling as an employee” were added to Mr Hurst’s licence from 20 February 2004.
On 15 February 2008, the complainant, the Commissioner for Consumer Affairs (the Commissioner), filed a complaint in this Court alleging that there is proper cause for disciplinary action against Mr Hurst, on three counts.
These are based on the allegation that Mr Hurst was convicted on 20 August 2002 of one count of producing a controlled substance contrary to s 32(1)(a) of the Controlled Substances Act 1984, which being an offence referred to in s 9(1)(b) of the Act means that Mr Hurst would not be entitled to be granted a licence if he were now to apply.
Grounds two and three of the complaint are that Mr Hurst acted contrary to the Act in the course of performing functions as an agent, in that he had failed to disclose that he had been charged and subsequently convicted of a criminal offence, in relevant annual returns required under the Act, and thus had made a false or misleading statement in a material particular by omission, contrary to s 37 of the Act.
The full particulars of the complaint alleging that “there is proper cause of [sic] disciplinary action against Mr Hurst” are set out below:
1. Events have occurred such that the defendant would not be entitled to be granted a licence as a security and investigation agent if he were to apply for a licence.
Sections 9(1)(b) and 25(1)(e)(ii) of the Security and Investigation Agents Act, 1995 (“the Act”).
Particulars
1.1The defendant holds, and at all relevant times had held, 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.

Continue reading Commissioner for Consumer Affairs v Hurst

Details

AGLC: Commissioner for Consumer Affairs v Hurst [2008] SADC 119
Case: [2008] SADC 119
Decision Date: 26 September 2008

CaseChat Overview and Summary

The Commissioner for Consumer Affairs filed a case against Hurst, a licensed security and investigation agent, seeking to cancel his licence under the Security and Investigation Agents Act 1995. The Commissioner argued that Hurst was convicted of a criminal offence while holding his licence, failed to notify the fact of his conviction, and was dishonest in his annual returns, thus warranting the cancellation of his licence. The primary legal issue for the court was whether Hurst's conduct constituted a breach of his licensing obligations and if such breaches warranted the cancellation of his licence. The court examined the statutory requirements for licence holders, the nature of Hurst's criminal conviction, and the implications of his failure to disclose this information. It also assessed whether Hurst's conduct fell below the standards expected by the public in the context of licensed security and investigation agents.

The court found that Hurst's failure to notify his conviction was a significant breach of his licensing obligations, as the Act requires prompt disclosure of any criminal convictions to the licensing authority. The court further held that Hurst's dishonesty in his annual returns indicated a lack of integrity, which is crucial for maintaining public trust in licensed professionals. Given these findings, the court determined that Hurst's conduct was incompatible with the standards expected of a licensed security and investigation agent. Consequently, the court ruled that Hurst's licence should be cancelled to protect public interest and maintain the integrity of the licensing system.

Orders