Commissioner for Consumer Affairs v Leonello - [2005] SADC 134

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division: Application for Review)
COMMISSIONER FOR CONSUMER AFFAIRS v LEONELLO
Judgment of His Honour Judge Tilmouth
(Assessor Hewitt and Assessor MacDonald)
5 October 2005
PROFESSIONS AND TRADES - OTHER PROFESSIONS, TRADES OR CALLINGS - LICENSING OF PARTICULAR TRADES OR CALLINGS
Complaint against respondent as holder of licence under Security and Investigation Agents Act - Complaint asserts that there is proper cause for disciplinary action against respondent by reason of his conviction of two indictable cannabis offences involving personal use - scheme of Act discussed - respondent's circumstances discussed - held that penalty should reflect need for Court to maintain public confidence in standards and integrity of security industry - order that respondent's licence be suspended for twelve months.
Security and Investigation Agents Act 1995 ss7, 9(1), 20(4), 26-29 and Regulation 9; District Court Act 1991 ss20(4)(b)(i) and (ii) 42G; Controlled Substances Act 1984 ss 31(1), 32(1), 32(6), 45A, referred to.
Commissioner for ConsumerAffairs v Sollars (2001) 79 SASR 145 at 147; Carusi v Police [2002] SASC 240; Commissisoner for Consumer Affairs v Tedesco [2005] SADC 79; Scerri v Commissioner for Consumer Affairs (2003) 139 ACrimR, 24 LSJS 343; Commissioner for ConsumerAffairs v Stamoulis [2002] SADC 101; Sobey v Commercial and Private Agents Act (1979) 22 SASR 70, considered.

COMMISSIONER FOR CONSUMER AFFAIRS v LEONELLO
[2005] SADC 134
Background

Francesco Leonello is the holder of a restricted Security Agents Licence issued pursuant to the provisions of the Security and Investigation Agents Act 1995 (SA) (the S&IA Act), a licence he has held since 1 April 2003.[1] The Commissioner for Consumer Affairs brings these proceedings as complainant seeking the cancellation of this licence for the reasons appearing below.
[1] Exhibit P1.
When hearing the complaint this court exercises the jurisdiction relating to disciplinary actions commenced against licensed agents under the S&IA Act vested by ss26-29, sitting as the ‘Administrative and Disciplinary Division’[2] of the Court. That being so, questions of law and procedure are determined by the presiding Judge, whereas other questions fall for determination by majority opinion.[3] As it happens we are of a unanimous view as to such questions.
[2] Section 3 “Court” of the Security and Investigation Agents Act 1995 (SA) and s7(d) s20(4) of the District Court Act 1991 (SA)
[3] ss20(4)(b)(i) and (ii) District Court Act
The Defendant’s use of licence
Mr Leonello is a painter by trade, owning and operating his own business.[4] He has held a builder’s licence for about ten years, and he supplements the income from this business by undertaking employed security duties, essentially at large venues, particularly the “Big Day Out” and at the Entertainment Centre.[5] These activities top up his income to the extent of up to $4,000 per year.[6] His work under the S&IA Act plainly does not supply the majority of his income in any sense, nor is he dependent upon it to make a living. The type of work he undertakes at the Entertainment Centre is in the main, crowd control, patrolling corridors, carparks and so on;[7] it does not involve working in nightclubs. He does not intend to work at the “Big Day Out” event again.[8]
[4] Transcript 30 L 12-18
[5] Transcript 30 L22-34, T 34 L20-32
[6] Transcript 30 L31-34, T34 L31-35, L5.
[7] Transcript 42 L8-32; T43 L11-19
[8] Transcript 44 L10-17
Conviction after licence
Regrettably Mr Leonello was sentenced in the Adelaide Magistrate’s Court on 2 November 2004 for producing and possessing cannabis.[9] He was convicted of each and fined a total of $325 for both offences. The sentencing remarks read as follows:[10]
Mr Leonello, you have pleaded guilty to these two matters. The offences involve three medium size plants and three smaller plants at the residence.
You are in steady employment; you have no prior convictions. I am required obviously to proceed on the basis this was for your own use. These are matters where in my view it would be quite unusual not to record a conviction. That is the application made by Mr Lister. In my view given your circumstances to which I now turn my mind, I note your employment in the security industry, your desire to keep all of that. I have no role to play in the licensing of security agents and in the ordinary course of events that would be for other authorities.
I acknowledge that Section 16 of the Criminal Law Sentencing Act allows a court from time to time in appropriate circumstances not to record a conviction. In my view offences of this type are such that it would be an unusual case not to record a conviction.
This case before me is quite ordinary of the type of matters that come before the court. There will be a conviction recorded; fine $325.00; court fees $130.20; levies $70-; prosecution fee $16-. Order forfeiture of the material and the accoutrements.
[9] Exhibits P 2 and P 3; this is admitted by him: Transcript 7 L27-37
[10] Exhibit P3.
It may be seen that the sentencing court accepted the cannabis was solely for the personal use of the defendant. The maximum penalty for each offence was a fine of $500.[11]
[11] s32(6) Controlled Substances Act 1984
Being concerned at the effect the convictions might have on his licence under the S&IA Act, the defendant appealed against this penalty to the Supreme Court. That appeal was heard by Bleby J, who delivered an extempore judgment on 17 January 2005, dismissing the appeal.[12]
[12] Exhibit P4 Police v Leonello [2005] SASC 29.
That judgment records that when spoken to by the police, presumably following arrest for the offences, he acknowledged that “it was an offence to cultivate and possess cannabis” and that he smoked cannabis “every day or so” and that it would take him about two weeks to smoke 200 grams of cannabis.[13] It appears from the papers that about six hydroponically grown marijuana plants were involved, three of them mature and three somewhat smaller[14] and about 280 grams of cannabis material; the former comprising the production offence and the latter the possession offence.
Later in his reasons Bleby J also observed:[15]
The Magistrate considered the other extenuating circumstances that were put to him, particularly the possible effect of convictions upon the appellant’s ability to continue in employment of the type which he had been performing to that time. There was no certainty that those consequences would follow. However, if being a law-abiding citizen is a necessary pre-condition for a licence to carry out certain activities that suggests the necessity for a degree of confidence in the ability of the licensee to obey the law as a pre-condition of the grant of a licence. In those circumstances there is a countervailing public interest against the exercise of the discretion in favour of an offender. There is no good reason to conceal from the licensing authority the commission of two deliberate breaches of the law.
[13] Exhibit P4 [10]; The truth of these admissions were accepted by Mr Leonello: T33 L17-33
[14] Transcript 9 L1-11, T34 L1-16
[15] Paragraph [19].
In this context we note Carusi v Police [2002] SASC 240, which concerned an appeal against a sentence of imprisonment imposed on a security agent on duty at an hotel and who seriously assaulted a patron outside, the appellant Carusi being the holder of a restricted security agents licence pursuant to s7(c) of the S&IA Act. In the course of dismissing his appeal Gray J noted:
[30] The Act's purpose is to ensure that only properly qualified and trained agents perform security duties. The legislative scheme ensures that members of the public are not exposed to a risk of injury at the hands of untrained, unqualified and unlicensed agents. This includes the proper control of the conduct of crowds on private premises. Unacceptable and improper conduct is guarded against. The legislation recognises that private security agents are in a position of authority. Like any public enforcer of rights, their conduct must be regulated so that misuse and abuse of power can be guarded against. This is an important consideration when considering the provisions of the Act in cases such as the present.
The Present Application
As noted, the Commissioner brings a complaint, under s26 dated 9 May 2005, alleging pursuant to s25(1)(e)(ii) of the S&IA Act, that “events have occurred such that the agent would not be entitled to be granted the licence if he or she were to apply for it” and therefore “proper cause” for disciplinary action against “the defendant” exists. Those events are said to be the convictions of 2 November 2004 for producing cannabis contrary to s32(1)(a) of the Controlled Substances Act 1984 (SA) (the CS Act) and possessing cannabis contrary to s31(1)(a) of that Act, respectively.
Section 45A of the CS Act defines a simple cannabis offence as one “arising out of the possession of cannabis or … not being an offence involving the possession of quantities of cannabis … in excess of limits fixed by regulation for the purposes of this paragraph.” By Regulation 5 of the Controlled Substances (Expiation of Simple Cannabis Offences) Regulations 2002, possession of 100 grams or more of cannabis is not expiable for the purposes of s45A(8)(a) of the CS Act. For relevant purposes that sub-section defines a “simple cannabis offence” to mean:
an offence arising out of the possession of cannabis …not being an offence involving the possession of quantities of cannabis … in excess of limits fixed by regulation for the purposes of this paragraph.
Accordingly, since Mr Leonello possessed 280 grams of cannabis the offence of possession was not a “simple offence”. Likewise Regulations 5(3) and 6(e) provide only for the cultivation of one cannabis plant to be an expiable simple cannabis offence, so that possessing six cannabis plants also fails to qualify as a “simple cannabis offence” within the meaning of s45A of the CS Act.[16] This conclusion is consistent with the reasoning of the Full Court in Scerri v Commissioner for Consumer Affairs.[17] In any case hydroponically grown cannabis plants, that is those ‘artificially enhanced’, are expressly excluded by s45A(8)(d) of the CS Act.
[16] Bleby J was of a similar view: Exhibit P4 [3]
[17] (2003) 139 A CrimR 299; 24 SLJS 343
This is important because a mandatory entitlement for securing a licence under the S&IA Act is that the applicant must not have been convicted of an offence of a class specified by Regulation: s9(1)(b) S&IA Act. Schedule 1 to the Security and Investigation Agents Regulations 1996 prescribes for the purposes of s9(1)(b), that offences under the CS Act are “a class specified”, other than a “simple cannabis offence within the meaning of s45A” of the CS Act.
It follows that the offences of which Mr Leonello was convicted in November of last year were “of a class specified by Regulation in relation to the functions to be authorised by the licence” within the meaning of s9(1)(b) of the Act. It further follows that his convictions for those offences amount to “events [that] have occurred such that the agent would not be entitled to be granted the licence if he or she were to apply for it” within the meaning of s25(1)(e)(ii) of the S&IA Act.
Policy Considerations
The Commissioner now seeks the cancellation of the licence held by the defendant following these convictions. It is contended, given that a person is automatically precluded from being granted a licence under S&IA Act upon conviction of such a disqualifying offence, it must follow that a person having been granted a licence and subsequently convicted of such an offences should not be entitled any longer to retain it.
This is said to be a consequence of policy enscribed in the S&IA Act, a policy designed to protect the public, to reinforce the confidence of the public in the enforcement of the S& IA Act, and to maintain confidence in and the integrity of the industry as a whole. That may be accepted, for as Walters J observed in Sobey v Commercial and Private Agents Board[18] in comments made with respect to the precursor to the present legislation,[19] but nevertheless equally applicable now:
Hence, it seems to me that the object of the legislation is twofold: first, to control, regulate and supervise the conduct of those who engage in the sort of work falling within the ambit of the Act, and, secondly, to ensure that those to whom licences are granted are persons of probity who have the capacity to carry out the duties and responsibilities with which licences invest them. With this in mind, Parliament has constituted a Board which, in the exercise of its discretion to grant or refuse licences, has a duty to the community to be careful not to accredit any person as a licensee under the Act, unless he is worthy of public confidence and can satisfactorily establish his right to that credential.
[18] (1979) 22 SASR 70 at 74
[19] The Commercial and Private Agents Act 1972.
There is no doubt the legislation erects a sophisticated and highly regulated statutory regime so that persons seeking licenses under its provisions are granted, in effect, a privilege rather than a right, one that is at risk of forfeiture in disciplinary actions on a wide range of grounds set out in s25(1). Such persons have always to be “fit and proper persons” to hold a licence[20] and the industry depends on their continuing integrity, honesty and reliability.
[20] s9(1)(d) Security & Investigation Agents Act
Clearly it must be taken when Parliament proscribes offences under s9(1)(b), it thereby intends those persons convicted of such offences to have placed themselves squarely within reach of the disciplinary process established under the S&IA Act.
Powers of the Court
However the Court has wider powers than the Commissioner holds when granting the licence and more to the point in relation to its retention. Neither the Court nor the Commissioner are by the S&IA Act, mandated to compulsorily cancel a licence held by a person subsequently convicted of a specified class of offence, although they may under proposed legislation yet to come into effect.[21]
[21] Statutes Amendment (Liquor, Gambling and Security Industries) Bill 2005
Rather the Court has a broad jurisdiction, triggered by s25(1) events when hearing complaints for disciplinary proceedings under Part 4 of the S&IA Act, when proper cause for disciplinary action against a licensed agent exists;[22] including events occurring “such that the agent would not be entitled to be granted the licence if he or she were to apply for it”,[23] to make various orders including cancellation or something less than that.
[22] s25(1)
[23] s25(1)(e)(ii)
That is the position here by dint of the convictions in the Adelaide Magistrate’s Court and the jurisdiction of this Court is thereby enlivened. Once being satisfied on the balance of probabilities that there is proper cause for taking disciplinary action under ss25(1), the Court is then empowered by ss27 and 28 to hear the complaint and to exercise the powers vested under s29.
These include powers of reprimand, to impose fines not exceeding $20,000, to impose conditions on the licence on natural persons, to suspend or disqualify, to prohibit the licence holder from being employed or performing functions as an agent or to act as an agent of a specified class, and to stipulate any disqualification or prohibition is to apply permanently or for a specified period, until the fulfilment of a stipulated condition, or until further order.
This Court as presently constituted determined to sit with assessors as permitted by s20(4) of the District Court Act 1991 (SA) and s29 of the S&IA Act, for the very reason that setting and maintaining adequate objective industry standards might become necessary.[24]
[24] Commissioner for Consumer Affairs v Tolia, No 611 of 2004. Transcript 4 L5-9; Mr Leonello consented to this course: Transcript 3 L1-7.
The power of cancellation
The fact that proof of the events occurring since the agent was granted a licence of a kind specified in s25(1)(e)(ii) which would otherwise disentitling the agent to be granted a licence, activates the jurisdiction of the Court. In that event the Court, unlike the Commissioner, may exercise a discretion to make an order falling short of cancellation, if that is a proper and just disposition of disciplinary action to remedy the complaint brought by the Commissioner.
Indeed, that is the view taken by the Court in a number of cases concerned with disciplinary hearings under the Act. For instance in the Commissioner for Consumer Affairs v Tedesco[25] the Court wrote:
It is only in exceptional circumstances that the Court should exercise its discretion not to cancel the licence, when the circumstances are such that a situation has arisen that would exclude a person from holding a licence in the first place.
[25] [2005] SADC 79 (Judge Lee, Assessors McDonald and Steuart)
In that case the Court cancelled a licence held under the S&IA Act with respect to a licence holder found guilty of rape and sentenced to imprisonment for five years with a non-parole period of two years and six months.[26] In doing so the Court referred to the decision in Commissioner of Consumer Affairs v Stamoulis[27] where a licence was also cancelled upon conviction of the licensee for producing thirty one cannabis plants grown hydroponically and who was sentenced to a suspended jail term of eighteen months imprisonment with a non-parole period of nine months.[28] In that case it was said in delivering extempore reasons:[29]
In all those circumstances there is nothing to take his case out of what I would regard as the ordinary class which is that a person who would not be entitled to get a licence in the first place in any circumstances should not be entitled to continue to hold a licence if he commits a prescribed offence. That is what has happened here. Not only is the offence an indictable offence, generally prescribed, but it is an offence specifically prescribed as a drug offence.
[26] Tedesco Para 3.
[27] [2002] SADC 101 (Judge Bright)
[28] Page 2.
[29] Page 5.
Similarly in the case of Tolia[30] the Court cancelled a licence of a licensee convicted of taking part in the production of cannabis involving a crop of forty hydroponically grown cannabis plants. Mr Tolia was sentenced to three and a half years imprisonment with a non-parole period of eighteen months. In doing so it was concerned in that case:
with a risk of committing a person convicted of a serious drug offence to be in a position of authority in places where there was a widely perceived problem of legal sale and consumption of drugs.[31]
[30] Transcript 4 May 2005 No 611/2004, Judge Bright, assessors Warren and Hutchinson
[31] Page 21.
Finally in Commissioner for Consumer Affairs v Moore-McQuillan[32] a licence was cancelled in view of convictions for common assault, resisting and assaulting police and dishonesty.
[32] [2004] SADC 60, Judge Lowrie, Members McDonald and Steuart
The Criteria for Cancellation
In making the respective observations in both Stamoulis and Tedesco, we do not think the Court was laying down any exhaustive legal criterion of “exceptional circumstances”, before an order for cancellation is to be made where a disentitling offence is committed after a licence is issued. That expression merely refects the position that the Court is unlikely to make orders falling short of cancellation on relatively few occasions, following the commission of prescribed offences by licence holders under the S& IA Act. No such criterion or qualification appears in the Act, so it would be to place an unwarranted gloss on the statute to read it in that way.[33]
[33] Thompson v Gould & Co [1910] AC 409, 420, Tinkham & Perry [1915] 1KB 547, 549

On the other hand we regard both cases as persuasive to the extent that they indicate that it is only for offences - whether convictions were imposed or not - entailing relatively minor breaches of the class of offences specified under s9(1)(b), that the Court is likely to exercise powers other than full cancellation.
When it comes to prescribed cannabis offences, it is only in circumstances where the offence stands at the comparatively low end of seriousness for that class of offence, we suggest, that the court might entertain a more benign view. Certainly when the evidence suggests any element or component of the manufacture, or production of any prohibited drug or substance for sale or supply, or there is any semblance of commerciality, it is hardly conceivable that anything other than cancellation is appropriate.
Even then where the licence holder works in the security and investigation industry on assignments involving the potential for frequent contact with people, and especially young people, who may be seeking drugs, such as in nightclubs and the like, the mere proof of a prescribed drug offence might in itself be enough to visit the full rigor of cancellation upon the holder, if other options prove to be inapplicable or unworkable.
It follows that whilst not every subsequent event disentitling an agent from the grant of a licence would necessarily lead to cancellation under the present statutory scheme, there are possibly few that would not.
Previous decision of the Court
We note that in the case of Stamoulis for example, the cannabis plants could have produced between one and a half and two kilograms of usable cannabis. It appears that he was to supply to his friends.[34] It was a proper concern in that case that the licensee might come into contact with “many people who might be interested in possessing drugs”[35] and the Court knew very little about his personal circumstances, unlike the present case. And the case of Tolia included a very substantial crop, wholly inconsistent with personal use.
[34] Page 2 and Page 4.
[35] Page 4.
The circumstances of this case and those in Tolia and Stamoulis are quite different. On their face, those two cases involved far greater quantities of cannabis and had commercial or supply overtones to them, whereas in this case on the express findings of the Chief Magistrate, none of those considerations applied.
Equally in the other cases coming before the Court referred to above, the disqualifying class of offences were far more serious than those in the instant case, such as in Tedesco.
Other instances are Commissioner for Consumer Affairs v Boynton[36] which involved an assault occasioning actual bodily harm and where restrictions were imposed on the licensee pursuant to s29(1)(c)(i) and (e), and Consumer Affairs v McCurdy[37] although concerning a different industry under the Plumbers, Gas Fitters and Electricians Act 1995, the licensee was convicted of three sexual offences against persons under the age of 12, and yet the licence was not cancelled in that case.
[36] [2000] SADC 103 (Judge Anderson)
[37] [2004] SADC 174 (Judge Bishop)
Exercise of powers in this case
Being satisfied that there is proper cause for taking disciplinary action we turn attention then, to the powers of the Court vested in s29 of the S&IA Act as they pertain to the proved facts of this case.
We commence the question of the appropriate option from those available to us under that section, from the point of view that the defendant has committed conduct which would ordinarily disentitle him from holding a licence, and he has therefore by his own conduct, exposed himself to forfeiting the privilege the licence confers, unless his particular circumstances justify a different resolution.
This approach is dictated by policy considerations evident from the Act itself, and is one in keeping with both the desire to “lift standards in the industry”[38] and :
… 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.[39]
[38] Second Reading Speech Legislative Council 18 October 1995 p 250
[39] Commissioner for Consumer Affairs v Sollaris (2001) 79 SASR 145 at 147[14] per Doyle CJ
A mere reprimand would singularly fail to achieve any of these objectives. A fine is inappropriate since the defendant has already been fined in the criminal court for the subject offences and since the licence is one held as an employee, there would be no purpose in prohibiting him as an employee from holding employment because that would be tantamount to cancellation anyway.
The licence of the defendant is also endorsed for permitting work as an employee, restricted to ‘guard’, ‘crowd control’ and ‘canine handling’ work. There is no point in imposing further conditions relating to these restrictions, because if a condition were imposed preventing Mr Leonello from undertaking crowd control for instance, that would as he frankly conceded, also work as cancellation of the licence.[40] In any event it would be difficult if not impossible to enforce or supervise any such conditions. We are unable to identify any sound reason for imposing restrictions on the other conditions of the licence.
[40] Transcript 43 L20-24
On the other hand outright disqualification or cancellation appears to us to be too punitive given the express findings of the sentencing Magistrate even though we recognise that any order we make is not punitive in character.[41] Mr Leonello impressed us when making submissions to the Court on his own behalf and he freely volunteered information sought by the Court at various times without question. He told the Court that the offences had led him to give up the use of marijuana altogether[42] and we see no reason to doubt him as to this. The accepted circumstances of the offending are consistent with that conclusion, namely that it was a ‘one-off’ crop, an isolated incident and out of character.[43] He has had no complaint in his painting business in the building industry and we are assured by counsel for the complainant that his licence in that industry is not in jeopardy.[44]
[41] Commissioner for Consumer Affiairs v Sollaris (above) at 148 [18]
[42] Transcript 30 L12-15, T 32 L25-29, T33 L36-37
[43] Transcript 33 L2-9
[44] Transcript 26 L19-28
At the other extreme, not to take any action save a reprimand, singularly fails, it seems to us, to adequately give effect to the policy considerations identified above, as reinforced by decisions of this Court, and also fails to adequately implement the full statutory remit of s29 itself, which by and large suggests that relatively drastic consequences can follow from ‘misbehaviour’ of relatively little materiality.
“Fit and Proper Person”
It was further submitted by the complainant that the defendant was not a “fit and proper person” to be the holder of a licence within the meaning of s9(1)(d) of the S&IA Act. That expression is to be interpreted in the context of different statutory regimes and differing industries, although it appears commonly in many statutes: Petracaro v Commissioner of Consumer Affairs,[45] Law Society of South Australia v Rodda.[46]
[45] (1994) 62 SASR 387, 390, 392
[46] (2002) 83 SASR 541
In this context we refer again to the comments of Walters J in Sobey v Commercial and Private Agents Board:[47]
The issue whether an appellant has shown himself to be "a fit and proper person", within the meaning of s16(1) of the Act, is not capable of being stated with any degree of precision. But for the purposes of the case under appeal, I think all I need to say is that, in my opinion, what is meant by that expression is that 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.
[47] (1979) 22 SASR 70 at 76
However given the circumstances of the offences detailed above, the acceptance of the fact that the defendant grew a relatively small amount of marijuana for his own use, that he has given up using the drug, that this industry is not his major source of income and that the work he does in the main does not expose him to any appreciable risk of contact with the drug scene such as he might have if he worked in the night clubs, together with the restricted nature of the licence, we see no reason to doubt that he retains the basic characteristics of honesty, reliability and the knowledge and ability pertinent to the security industry, or that he is not a person to be entrusted with work within the security industry, simply by reason of the commission of these offences.
Conclusion on Penalty
In all the circumstances we are of the unanimous view that the appropriate course in this case is to suspend the defendant’s licence pursuant to s29(1)(ii) of the S&IA Act.
Further we are of the view that a period of suspension for twelve months would best reflect an appropriate balance between the findings of relatively minor offending committed by the defendant, as against the primary policy of public protection, and as an appropriate measure designed to reinforce the confidence of the public in the industry and in the administration of the S&IA Act itself. After all a licence under the Act is perceived by the public as warranting the holder of that licence to have done nothing to jeopardise the licence, which is not exactly the case of the defendant in this matter.
To borrow once again from the judgment of Walters J in Sobey v Commercial and Private Agents Board: [48]
To my mind, it is not inconsistent with the assumed intent and meaning of the statute to say that a person, who holds a licence as a commercial agent, a commercial sub-agent or a process server, is in a minor, though practical, way held out as a person who is authorized to take some part in the administration of justice and who is capable of performing duties not dissimilar from those performed by bailiffs employed in the courts system. Moreover, persons holding licences under the Act are intended to be persons who, by reason of knowledge, skill, capacity, good fame and character, can safely be accredited to the public as persons who can be entrusted with the responsibilities and duties pertaining to the work comprehended by the particular type of licence held. Any member of the public engaging the services of, or having business dealing with, a person holding a licence as a commercial agent, a commercial sub-agent or a process server, is entitled to expect that person to be of good standing in the community and to possess sufficient skills, experience and proficiency to enable him to discharge the functions which he is licensed to perform.
[48] (1979) 22 SASR 70 at 74
Orders
Accordingly it is the order of the Court that the restricted agents licence no. ISL 176944 held by Francesco Anthonio Leonello be suspended under the provisions of s 29(1)(c)(ii) the Security and Investigation Agents Act for a period of twelve months commencing from today.
We further order the defendant return his license to the Commissioner for Consumer Affairs with all reasonable expedition.[49] As s42G(2) of the District Court Act prescribes “no order for costs is to be made unless the Court considers such an order to be necessary in the interest of justice”, we shall proceed to hear the parties as to whether there are any features of the case that might justify the making of such an order.[50]
[49] A similar order was made in Commissioner for Consumer Affairs v Quinn [2003] SASC 183 at [12].
[50] See Moore v Registrar of the Medical Board (No 2) 219 LSJS 448