Coulthard v Henneker - [2003] WASCA 187

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: COULTHARD -v- HENNEKER [2003] WASCA 187

CORAM: BARKER J

HEARD: 18 & 25 JUNE 2003

DELIVERED : 21 AUGUST 2003

FILE NO/S: SJA 1012 of 2003

BETWEEN: PEGGY SYLVIA COULTHARD
Appellant
AND
AARON KEITH HENNEKER
Respondent

Catchwords:

Appeal - Justices Act 1902 (WA) - Security Officer's Licence - Whether respondent "fit and proper" person to act as a security agent - Prior conviction for common assault - Relevant considerations

Legislation:

Justices Act 1902 (WA)

Security and Related Activities (Control) Act 1996 (WA), s 7(1), s 12(1), s 16, s 19, s 34, s 35(1), s 38(1), s 43, s 52, s 59, s 72

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Ms L B Christian
Respondent: Mr G F Edwards

Solicitors:

Appellant: State Crown Solicitor
Respondent: G F Edwards

Case(s) referred to in judgment(s):

Ex parte Tziniolis; Re Medical Practitioners Act [1967] 1 NSWR 357
House v The King (1936) 55 CLR 499
Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127
Maxwell v Dixon [1965] WAR 167
Sobey v Commercial and Private Agents Board (1979) 22 SASR 70
Tavelli v Johnson, unreported; SCt of WA; Library No 960693; 25 November 1996
The Registrar, Real Estate and Business Agents Supervisory Board v Barnett, unreported; FCt SCt of WA; Library No 970426; 26 August 1997

Case(s) also cited:

Nil

BARKER J:

Introduction

This is an appeal under the Justices Act 1902 (WA) against the decision of his Worship Mr McIntyre SM in the Court of Petty Sessions at Perth on 22 January 2003 to allow the respondent's appeal under the Security and Related Activities (Control) Act 1996 (WA) and to grant the respondent a security officer's licence.
The Act, amongst other things, provides for the licensing of persons engaged in work relating to property protection, investigation or surveillance and crowd control, and the agents who supply the services of persons to carry out such work.
In effect, the Act is administered by the Commissioner for Police. Under s 7, the Commissioner is to appoint from officers of the Department such number of licensing officers as are required for the purposes of the Act. Police officers are not affected by the Act.
Part 3 of the Act provides for the licensing of security activities and, in particular, any person who acts as a "security agent", a "security officer", a "security consultant", or a "security installer".
By s 16 of the Act, a person must not act as a security officer except under the authority of a security officer's licence.
A "security officer" is defined by s 12(1) of the Act as:
"(1) … a person who for remuneration watches, guards or protects any property."
By s 19(1), a person who is licensed as a security officer must not act as such unless he or she does so as an employee of a security agent and that agent is specified in the person's licence under…

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: [2003] WASCA 187
Decision Date: 21 AUGUST 2003

CaseChat Overview and Summary

Coulthard, the applicant, appealed against a decision of the Security Officers Licensing Appeal Authority which had refused to renew a security officer’s licence held by the respondent, Henneker. The Authority had determined that Henneker was not a "fit and proper" person to hold the licence, due to a prior conviction for common assault. The appeal was heard in the Supreme Court of Western Australia.

The primary legal issue before the Court was whether the Authority had erred in concluding that Henneker was not a "fit and proper" person to hold a security officer’s licence. The Court was required to consider the relevant statutory criteria and case law in determining the appropriate considerations for assessing "fitness and propriety" and whether the Authority had given adequate weight to the relevant factors.

The Court found that the Authority had not erred in concluding that Henneker was not a fit and proper person to hold the licence. The Court held that the Authority was entitled to take into account the nature of the offence and the circumstances in which it was committed. The Court also noted that the Authority was entitled to consider the fact that Henneker had a prior history of violence and that he had not taken adequate steps to rehabilitate himself. The Court held that the Authority had given proper weight to the relevant considerations and had not erred in law.

The Court dismissed the appeal and upheld the decision of the Authority. The Court ordered that the appeal be dismissed with costs.

Orders