Commissioner for Consumer Affairs v Sollars

THE COMMISSIONER FOR CONSUMER AFFAIRS v SOLLARS
[2001] SASC 110
Miscellaneous Appeal (Civil)

DOYLE CJ: This appeal requires consideration of the powers of the District Court sitting in its Administrative and Disciplinary Division, exercising jurisdiction conferred on it by the Security and Investigation Agents Act 1995 (“the Act”).
The proceedings in the District Court
Mr Sollars is an agent, licensed under the Act. I gather that he is a security agent for the purposes of the Act. He is permitted to perform the function of controlling crowds. He has held a licence authorising him to act as a security agent controlling crowds since November 1996.
On 24 March 2000 the Commissioner for Consumer Affairs issued a complaint against Mr Sollars under the Act. The complaint alleges that there is proper cause for disciplinary action against Mr Sollars under the Act.
The following matters were alleged by the complaint and proved before the Court. They were not in dispute. On 11 July 2000 Mr Sollars was convicted in the Adelaide Magistrates Court of the offence of assault occasioning actual bodily harm. The assault was committed while he was working as a crowd controller. The offence is an offence of a class specified by Regulation 5 and Schedule 1 of the Security and Investigation Agents Regulations 1996. By virtue of s 9(1)(b) of the Act, a licence could not be granted to Mr Sollars if he were now to apply for one, having regard to the fact of the conviction. By s 25(1)(e)(ii) of the Act, there is proper cause for disciplinary action against an agent if “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.” Accordingly, proper cause for disciplinary action was made out.
Section 29 of the Act provides that on the hearing of a complaint, if the Court is satisfied that there is proper cause for taking disciplinary action, it may make one or more of a number of orders specified in the section. Those orders include a reprimand, a fine, cancellation of a licence, the imposition of conditions on a licence and other orders of the type often encountered in such cases.
The matter came before the District Court in its Administrative and Disciplinary Division, pursuant to s 26 of the Act. For this purpose, pursuant to s 20(4) of the District Court Act 1991, the Court was constituted by a Judge and two assessors.
The matter finally came on for hearing on 7 February 2001. Mr Sollars was represented by a solicitor, as was the Commissioner. The Court heard evidence and submissions.
The decision of the Court was to adjourn the proceedings for a period of one year. The parties were at liberty to call the matter on at any time. The Court indicated that if, at the expiry of that time, “there has been no more trouble, we will not cancel the licence”. On the other hand, the Court said that if there had been “trouble”, then it was “virtually inevitable” that the licence would be cancelled. A condition was imposed on Mr Sollars’ licence that during the period in question he answer truthfully any questions the Commissioner might direct to him as to whether or not he had been charged with any offence relevant to his capacity to obtain a licence.
It is against this decision to adjourn the proceedings that the Commissioner appeals.
Issues on appeal
Three submissions were advanced on appeal. The first is that the power of the Court to adjourn the proceedings does not include a power to adjourn the proceedings for such a purpose. In other words, the Court exceeded its powers in acting as it did. The second submission is that even if there is power to adjourn the proceedings for such a purpose, the Court erred in doing so in the circumstances of the case. The third submission is that the Court erred because the Commissioner was not given the opportunity to be heard on the course that the Court followed.
As to that last point, the transcript indicates that the solicitor for Mr Sollars did not ask for the Court to follow the course that it did follow, nor did the Court indicate to the solicitor for the Commissioner that it might follow this course. There seems to be some force in the third submission, but as will appear I have found it unnecessary to deal with the submission.
The decision to adjourn
By s 22 of the District Court Act the Court has power to adjourn proceedings. This is a wide power, to be exercised in the interests of justice. Experience indicates that the circumstances in which it is appropriate to adjourn proceedings are many and varied. It is difficult to state in useful terms any particular limitation on the power to adjourn. Perhaps all that can be said is that the power must be exercised in the interests of justice, and for some purpose connected with the proceedings in which the power is exercised.
The provisions of the Act relating to the grant of a licence indicate that Parliament is concerned to ensure that licensed persons have appropriate qualifications and experience to act as agents, and are fit and proper persons to be licensed. The criteria to be met by a person seeking a licence are sometimes expressed in absolute and objective terms, and on other occasions in language that requires the Commissioner to make a qualitative assessment. The requirements to be met by an applicant for a licence are set out in s 9 of the Act.
In my opinion the scheme of the Act is relevantly 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 qualifications, experience and fitness for the occupation.
I infer from the provisions relating to the grant of a licence, and from the provisions relating to disciplinary action, that the purpose of disciplinary proceedings is once again the protection of the public by imposing a penalty, by exercising particular controls over a licence holder, or by depriving a licence holder of a licence temporarily or indefinitely, having regard to the occurrence in question and to the nature of the cause for the taking of disciplinary action. The circumstances that constitute proper cause for disciplinary action are, once again, sometimes expressed in absolute and objective terms, and sometimes in terms that require the making of a qualitative assessment.
If the Court is satisfied that there is proper cause for the taking of disciplinary action, the Court must then consider which of the orders specified in s 29(1) of the Act should be made. That section does not refer to adjourning the proceedings, but that is neither here nor there. Presumably in the present case the Court contemplated making some order to bring the proceedings to a conclusion, and perhaps contemplated a reprimand if all went well from Mr Sollars’ point of view.
Be that as it may, the question for the Court, bearing in mind that proper cause for the taking of disciplinary action had been made out, was which of the orders provided for in s 29 of the Act should be made.
That was a decision to be made taking account of the fact that the purpose of the statutory scheme is the protection of the public. Although the consequences of the making of an order may appear to operate as a punishment for Mr Sollars, it needs to be understood that the order itself is not punitive in character, nor is the decision as to the order to be made to be reached by reference to considerations relevant to the sentencing of an offender. The observations made by the High Court in New South Wales Bar Association v Evatt (1968) 117 CLR 177 are as applicable to this case as they are to disciplinary proceedings against members of the legal profession. There the Court said (at 183-184):
“The power of the Court to discipline a barrister is, however, entirely protective, and, notwithstanding that its exercise may involve a great deprivation to the person disciplined, there is no element of punishment involved.”
The Court went on to refer to remarks a like effect that it had made in Clyne v The New South Wales Bar Association (1960) 104 CLR 186 where it said (at 201-201):
“... [A] disbarring order is in no sense punitive in character. When such an order is made, it is made from the public point of view, for the protection of those who require protection, and from the professional point of view, in order that abuse of privilege may not lead to loss of privilege.”
Thus, although the operation of the order on the agent in question may appear to be punitive, the issue for the Court is the protection of the public.
As I have said, the power to adjourn proceedings is a broad one. It can be exercised in many circumstances. In the present case the Court had before it all relevant matters, as far as I can tell. Certainly it had before it all the material that the parties asked it to consider. The issue for the Court was whether the offence committed by the respondent, taking account of the circumstances in which it was committed, combined with the information about Mr Sollars made available to the Court, satisfied the Court that the protection of the public required the making of one of the orders provided for by s 29 of the Act.
It is difficult to understand what was to be gained from the order made. If no further misconduct was reported, plainly enough the Court was not going to cancel Mr Sollars’ licence. But it is difficult to understand how the answer to the question that the Court had to consider would be affected by the fact that a further year had passed. If the offence was of sufficient seriousness to call for the making of an order, the order should have been made then and there. Bearing in mind that Mr Sollars had already remained in the industry for about 15 months since his offence, trouble-free, one might wonder what would be achieved by seeing whether that would continue to be the case for a further 12 months. I suppose that in that event the Court might more confidently form the conclusion that, notwithstanding the seriousness of the offence, an order short of suspension of the licence or cancellation of the licence was appropriate. But it would often be the case that the fact that a person facing a disciplinary order refrained from misconduct for an extended period of time would make one less inclined to make one of the more severe orders, simply because one could more readily conclude that the cause for disciplinary action was an isolated and out of character incident. On the other hand, if Mr Sollars’ conduct had not been satisfactory during the intervening period, on what basis would the Court have taken account of that? The only cause for disciplinary action before the Court was the matter alleged in the complaint. It is not easy to see how some later misconduct would, without further proceedings, be a basis for the making of an order that was not warranted by the matter already established before the Court.
The decision made by the Court appears to me to be like the sort of decision that might be made by a Court in sentencing proceedings, of the type often called a “Griffith remand”: see Griffiths v The Queen (1977) 137 CLR 293 at 306 Barwick CJ. Such an approach is not appropriate in disciplinary proceedings. The considerations are different. A decision to defer sentence in criminal proceedings is based very much on considerations of reform and on prospects of rehabilitation. Such matters are of little relevance in disciplinary proceedings, when the focus is on the protection of the public.
I return to the first question that must be decided, whether the Court had the power to adjourn the proceedings for the purpose for which it did so.
My conclusion is that the Court did have the power to make the order that it made. I reach that conclusion despite my doubts about the point of the adjournment, because of the difficulty of confining such a wide power as the power to adjourn proceedings within any definite limits. The fact that a person against whom there is proper course for taking disciplinary action is in that position by virtue of a single incident, and so far as the Court is aware has an unblemished record prior to and after that incident, is relevant to the question of whether the public interest requires the making of a particular disciplinary order. That being so, I am unable to say that the length of time which has elapsed since the incident in question, and during which the person has an unblemished record, is an irrelevant consideration. While I have indicated clearly enough my reservations about the utility of the order made in the present case, I am not satisfied that it is an order of the type that the Court lacked the power to make.
Accordingly, I turn to the question of whether, in the circumstances, the discretion was wrongly exercised. Bearing in mind the nature of the discretion, it is not for me to decide this appeal by reference to the manner in which I would have exercised the discretion, or even by reference to the manner in which I think that the discretion should have been exercised. The appeal succeeds only if the decision made is one which could not have been reached in a proper exercise of the discretion.
In my opinion the decision to adjourn is not one that was able to be made in a proper exercise of the discretion to adjourn proceedings.
If the conviction recorded against Mr Sollars called for a particular order, such as suspension or cancellation of his licence, despite his unblemished record before and after the incident, such an order should have been made to protect the public. The fact that Mr Sollars might continue to work as an agent for a further 12 months, without any further misconduct or blemish on his record, could not alter what the protection of the public required, if it required the making of such an order.
The adjournment was not for a particular purpose, such as to enable Mr Sollars to undergo counselling or supervision, which might satisfy the Court that the protection of the public did not require the making of an order for cancellation or suspension. A substantial period of time had elapsed since the commission of the offence in question. There was no suggestion of any misconduct by Mr Sollars in the intervening period. It was not a case in which it was necessary to wait to see if the conviction could be regarded as an isolated incident. I cannot see how the passage of a further period of time, with no suggestion of misconduct by Mr Sollars, could assist the Court in deciding what order should be made. There was sufficient material for the Court to decide, if so minded, that the incident was isolated and out of character. What was left for the Court was the seriousness of the offence, its significance for a person licensed as a security agent, and the need to maintain appropriate standards of fitness to be licensed as a security agent.
If the decision is correct, then in most cases in which the Court is unsure what to do (I assume the Court must have been unsure), it would equally follow that it would be appropriate to adjourn the proceedings for a further substantial period to put to a further test the licence holder’s fitness to continue as a licence holder. Such an approach would undermine the disciplinary scheme of the Act.
I realise that it is exceptional for a Court to review and reverse a decision to adjourn proceedings. But in my opinion the decision that the Court made is, with respect, erroneous in principle, in the circumstances of this case. I wish to emphasise that my view is not that disciplinary proceedings could never be adjourned for the sort of purpose for which they were adjourned in this case, but that in the circumstances of this case there are no proper grounds for doing so.
Conclusions
The appeal to this Court lies under s 43(3) of the District Court Act 1991. That provision provides for an appeal as of right on a question of law, and by leave on a question of fact. The appeal appears to raise a question of law, that is, whether it was open as a matter of law to the Court to adjourn the proceedings on the basis on which it adjourned them. However, in case there should be any doubt, I would grant leave to appeal in this particular case, because the case raises an issue of principle and one which is of some importance to the exercise of the jurisdiction of the Court in its Administrative and Disciplinary Division.
It is unnecessary to deal with the complaint by the Commissioner that the Commissioner was not given an opportunity to be heard on the adjournment.
My reasons should not be taken as indicating that an order for suspension or cancellation of Mr Sollars’ licence is called for. My conclusion is no more than that the Court should proceed to decide the question of what disciplinary order should be made.
For those reasons, I order that the appeal be allowed, that the decision to adjourn the proceedings be set aside, and that the matter be remitted to the District Court for consideration of the order to be made under s 29 of the Act.

[2001] SASC 110

12 April 2001