Commissioner for Consumer Affairs v Moore-Mcquillan No. Dcadd-03-378

COMMISSIONER FOR CONSUMER AFFAIRS v MOORE-McQUILLAN
[2004] SADC 60
Judge Lowrie, Member MacDonald and Member Steuart
Administrative and Disciplinary Division

The Commissioner for Consumer Affairs, the complainant, issued these proceedings on 18 July 2003 seeking that Mr Markham Wayne Moore-McQuillan’s licence as a security and investigation agent be cancelled.
The complainant alleged the respondent was the holder of a commercial and private agents licence from 7 April 1993 to 30 March 1996 pursuant to the Commercial and Private Agents Act 1986 and because of the convictions of the respondent of the counts of common assault on 22 March 1996, 21 February 2000 and 11 September 2002, the respondent would not now be entitled to be licensed as a security agent, and, consequently, sought cancellation of the respondent’s licence.
The complainant further pleaded the events as summarised in paragraph 2 of the complaint would also mean that the respondent would not be entitled to be so licensed. The pleadings averred that on 14 March 1996 the respondent was convicted of six offences of obtaining payments by dishonest means, contrary to section 120(1)(a) of the Workers Rehabilitation and Compensation Act 1996.
The respondent appeared and represented himself on the hearing of this complaint.
During the course of the opening by counsel for the Commissioner he mentioned that the respondent had issued subpoenas and a person was present in the precincts of the court. It appeared that one of the persons so subpoenaed was a victim involved in one of the common assault convictions. The Tribunal advised the respondent that it would not involve itself in a discussion or debate of the alleged factual basis of the common assault convictions, as, if there was dissatisfaction with such convictions the appeal process had been available to the respondent. The Tribunal mentioned further that it would not concern itself with a discussion of the merits of any penalty imposed following such conviction, but was primarily concerned with the fact that a conviction had been recorded.
The respondent was handed a copy of a recent decision of the Full Court in the matter of Commissioner for Consumer Affairs v Quinn [2003] SASC 183, and commented upon matters therein concerning the disciplinary nature of the provisions of the Security and Investigation Agents Act 1995.
After a short adjournment to enable a consideration of these matters, the respondent advised the Tribunal of his desire for the matter to proceed.
Section 25(1)(e) of the Security and Investigation Agents Act 1995 provides:
“in the case of a person licensed as an agent -
(i) the licence of the agent was improperly obtained; or
(ii)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.”
The Commissioner alleged that because of the convictions, which he categorised as offences of violence, and the allegations in paragraph 2, the respondent would not be entitled to be a licensed person if he were now to apply to be so licensed under section 9 of the Act.
Counsel for the complainant referred to the provisions of section 9 of the Act which contain the provisions the basis for entitlement of a person to be licensed. Section 9(1)(b) provides:
“the person has not been convicted of an offence of a class specified by regulation in relation to the functions to be authorised by the licence;”
He then referred to the relevant regulation of licensing under section 9(1)(b), which provides:
“Schedule 1 Offences preventing persons being licensed agents or process servers
Licences section 9(1)(b) and 9(2)(b)(i)
1.(1) For the purposes of section 9(1)(b) and 9(2)(b)(i) of the Act, the following offences are prescribed in relation to any function to be authorised by a licence:
(a)an indictable offence;
(b)if the conviction was within the previous 5 years a Schedule 3 offence within the meaning of the Summary Procedure Act 1921 (an offence of dishonesty), other than a first offence of simple larceny;
(c)common assault or any offence of violence, other than a first offence of common assault;”
Counsel for the complainant said the three convictions would disentitle the respondent from being a person being able to obtain a licence and sought a cancellation of his licence under section 29, which provides:
“(1)On the hearing of a complaint, the Court may, if it is satisfied on the balance of probabilities that there is proper cause for taking disciplinary action against the person to whom the complaint relates, by order do one or more of the following:
....
(c)in the case of a person who is licensed as an agent -
(i)impose conditions or further conditions on the licence;
(ii)suspend the licence for a specified period or until the fulfilment of stipulated conditions or until further order;
(iii)cancel the licence;”
Counsel for the complainant also commented that, on paragraph 2 of the complaint concerning the six convictions for breaches of the Workers Rehabilitation and Compensation Act 1996, also meant that the respondent was not a fit and proper person to be the holder of such a licence. Section 9(1)(d) provides that a natural person is entitled to be granted a licence if:
“the person is a fit and proper person to be the holder of the licence;”
The Commissioner’s case was on documentary evidence. That documentary evidence established in Exhibit P1 that the respondent:
“1.was the holder of a commercial and private agents licence (CCA 68484) endorsed for the work functions of ’commercial agent as an employee, inquiry agent as an employee, security agent as an employee, security alarm agent as an employee and process server as an employee’, pursuant to the provisions of the Commercial and Private Agents Act, 1986 from 7 April 1993 to 30 March 1996 and;
2.is the current holder of a security and investigation agents licence (ISL.68484) endorsed for the work functions of ‘investigation agent restricted to collection work as an employee, investigation agent restricted to inquiry work as an employee, security agent restricted to guard work as an employee, security agent restricted to crowd control work as an employee, security agent restricted to canine handling as an employee, security agent restricted to security systems work as an employee and the licence does not authorise the performance of electrical work above 50v AC or 120v DC', pursuant to the provisions of the Security and Investigation Agents Act 1995 from 31 March 1996.”
The relevant certificate from the Office of Consumer and Business Affairs was dated 10 April 2003.
As proof of the offences which were alleged in the complaint, counsel for the complainant tendered a certificate of record dated 5 April 2000 which confirmed that on 22 March 1996 in the Adelaide Magistrates Court the respondent pleaded guilt and was convicted of failing to comply with a restraining order, resisting police and assaulting police. The respondent appealed this conviction and on 25 February 1998 the appeal was allowed in relation to the breach of the restraining order, but dismissed concerning the remaining counts. The respondent was re-sentenced on those counts.
A further certificate of record dated 5 April 2000 was tendered as evidence that on 21 February 2000 the respondent was convicted of common assault on a person other than a family member.
A further certificate of record dated 28 July 2003 was tendered, which contained an entry on 11 September 2002 of the respondent being convicted of common assault on a person other than a family member. The respondent appealed this conviction and on 27 June 2002 such appeal was dismissed.
A further certificate of record dated 5 April 2000 was tendered, establishing that on 14 March 1996 the respondent pleaded guilty to six counts of obtaining benefit by dishonest means. This matter went on appeal and eventually on 6 May 1998 the appeal was dismissed.
During the course of the complainant’s case the respondent commented on a number of alleged factual issues that arose in and about each of the above convictions.
By reason of the above matters, counsel for the complainant submitted that the Commissioner, by reason of the statutory provisions, was obliged to seek cancellation of the respondent’s security licence.
As mentioned, Mr Moore-McQuillan commented during the course of the complainant’s case on various aspects of the convictions. Mr Moore-McQuillan gave evidence surrounding circumstances relevant to these convictions and explained at length his ongoing dispute with the WorkCover Corporation. It is clear that this dispute is still ongoing and involves many complex issues.
The convictions for common assault are either directly or indirectly related to the respondent’s issues with WorkCover and violent confrontation with its solicitors and investigative agents.
In his evidence the respondent dealt with the alleged factual matters surrounding his core dispute with WorkCover and its solicitors and agents. He alleged these agents were perpetrating wrongful acts against himself and his property over many years.
There is little doubt that the respondent has significant ongoing issues with WorkCover and at one stage commented that he is now before “Olsson J we have got no.8 version”.
He then commented:
“Judge - yes, Olsson J or ex-Olsson J, AUJ now, he’s an auxiliary judge - I don’t think he’s enjoying it too much, either, just quietly.”
The respondent pointed out that he had worked in the security industry in the early period of his licence and in effect performed his duties in an exemplary fashion without any criticism and with the commendation of his employers. The respondent alleged and expressed himself with much feeling that, in effect, it was the wrongful action of the agents of WorkCover that have been responsible and/or the primary cause of the various incidents in question. He commented that because of all these issues arising from WorkCover he had become bankrupt, unemployed and now appeared before us on crutches and “now the Commissioner wants to take away the one area of employment that is available to me”.
As appears from the above recitals of the Act and Regulations that a person is not entitled to a licence if that person has been convicted of a specified offence. A specified offence is “common assault or any other offence of violence other than the first offence of common assault”. The respondent has been convicted of offences of common assault on 21 February 2000 and 11 September 2002 and assaulting police on 22 March 1996, three occasions of assault.
These matters present an unanswerable case against the respondent.
The Commissioner is also entitled to place and rely upon the respondent’s convictions pursuant to 120(1)(a) of the Workers Rehabilitation and Compensation Act 1996 in seeking that the licence be cancelled.
Accordingly, the respondent’s licence under this Act is cancelled.
Whilst there appear on the evidence some areas of concern with the many areas of conflict between Mr Moore-McQuillan and WorkCover these are not matters for consideration by this Tribunal.

[2004] SADC 60

7 April 2004