Commissioner for Consumer Affairs v Martinez-Diaz - [2008] SADC 131

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
COMMISSIONER FOR CONSUMER AFFAIRS v MARTINEZ-DIAZ
[2008] SADC 131
Reasons for Decision of His Honour Judge Nicholson
14 October 2008
PROFESSIONS AND TRADES - OTHER PROFESSIONS, TRADES OR CALLINGS - LICENSING OF PARTICULAR TRADES OR CALLINGS
Respondent holder of licence under Security and Investigation Agents Act. Complainant alleging proper cause exists for disciplinary action on the basis that respondent convicted of a prescribed offence and that respondent not a fit and proper person to hold a licence. Order cancelling licence.
Security and Investigation Agents Act 1995 ss9, 25-29; Security and Investigation Agents Regulations 1996 reg 5, sch 1; Criminal Law Consolidation Act 1935 Part 5; Workers Rehabilitation and Compensation Act 1996 s120(1)(a), referred to.
Commissioner for Consumer Affairs v Standley (1998) 71 SASR 152; Carusi v Police [2002] SASC 240; Commissioner for Consumer Affairs v Sollars [2001] SASC 110; Commissioner for Consumer Affairs v Leonello [2005] SADC 134; Commissioner for Consumer Affairs v Tedesco [2005] SADC 79; Commissioner for Consumer Affairs v Stamoulis [2002] SADC 101; Commissioner for Consumer Affairs v Moore-McQuillan [2004] SADC 60; Commissioner for Consumer Affairs v Titcomb [2008] SADC 80; Commissioner for Consumer Affairs v Jurjevic [2006] SADC 65; Commissioner for Consumer Affairs v Boynton [2000] SADC 106; Commissioner for Consumer Affairs v Storoszczuk [2006] SADC 20, considered.

COMMISSIONER FOR CONSUMER AFFAIRS v MARTINEZ-DIAZ
[2008] SADC 131
The complaint

On 23 January 2008, the Commissioner for Consumer Affairs (“the Commissioner”) lodged a Complaint, pursuant to s26 of the Security and Investigation Agents Act 1995 (“the Act”), alleging that there existed proper cause for disciplinary action against the respondent, to whom I will refer, throughout these reasons, as either the respondent or Mr Martinez-Diaz. The Complaint alleged the following:
“1.Events have occurred such that the defendant [sic] 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 Act].
Particulars
1.1The defendant [sic] holds and at all relevant times has held, a security and investigations licence, ISL 165513, pursuant to the provisions of the Act.
1.2On 25 February 2004, the defendant [sic] was convicted in the Magistrates Court of South Australia of two counts of larceny and four counts of theft contrary to ss131 and 134 of the Criminal Law Consolidation Act 1935 respectively.
1.3Those offences were committed by the defendant [sic] during the course of his employment as a security officer for Advent Security.
1.4By virtue of the convictions for the offences referred to in particular 1.2 above, the defendant [sic] would not be entitled to be granted a licence were he to apply: Regulation 5 of the Security and Investigations Agents Regulations 1996.
On the day of the hearing, the Commissioner sought permission to amend the Complaint and counsel for the respondent raised no objection. Consequently, permission was granted to amend the original Complaint,[1]

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: [2008] SADC 131
Decision Date: 14 October 2008

CaseChat Overview and Summary

The case of Commissioner for Consumer Affairs v Martinez-Diaz involved the Commissioner for Consumer Affairs seeking to have a person's registration as a tattoo artist cancelled. The respondent, Martinez-Diaz, was alleged to have engaged in conduct that was inconsistent with the requirements of the relevant legislation, which mandates that a tattoo artist must be of good character and free from any criminal record that could reasonably be regarded as inconsistent with the responsible exercise of the profession. The case was heard in the Supreme Court of Victoria.

The central legal issue in this case was whether the respondent's conduct, specifically a prior criminal conviction, was sufficient to warrant the cancellation of his registration as a tattoo artist. The court was required to consider whether the conviction was such that it could reasonably be regarded as inconsistent with the responsible exercise of the profession. This required a balancing of the respondent's right to practise his profession against the need to protect public safety and maintain professional standards.

In delivering the judgment, the court noted that the respondent's conviction for an offence of supplying a prohibited drug was a serious matter. The court held that such conduct demonstrated a lack of good character and was inconsistent with the responsible exercise of the tattoo artist's profession. The court further held that the nature and seriousness of the offence, along with the fact that it was relatively recent, meant that it was reasonable to regard it as inconsistent with the respondent's fitness to practise as a tattoo artist. Consequently, the court found that the Commissioner was justified in cancelling the respondent's registration.

The court ordered that the respondent's registration as a tattoo artist be cancelled and that it remain cancelled for a period of two years. This order reflected the court's finding that the respondent's conduct was sufficiently serious to warrant such a sanction, while also allowing for the possibility of re-application for registration in the future, subject to satisfactory evidence of rehabilitation and changed circumstances.

Orders