Dessmann v Commissioner for Fair Trading - [2015] NSWCATAD 255

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Dessmann v Commissioner for Fair Trading & Anor [2015] NSWCATAD 255
Hearing dates: 8 July 2015
Date of orders: 08 July 2015
Decision date: 08 July 2015
Jurisdiction: Administrative and Equal Opportunity Division
Before: S Montgomery, Senior Member
Decision:
The decision is affirmed

Catchwords: tattooist licence - fit and proper person
Legislation Cited: Tattoo Parlours Act 2012
Civil And Administrative Tribunal Act 2013
Cases Cited: Austin v Commissioner for Fair Trading + Commissioner of Police, NSW Police Force [2015] NSWCATAD 244
Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16
Council of the NSW Bar Association v Power [2008] NSWCA 135
Director-General, Ministry of Transport v FV (GD) [2008] NSWADTAP 60
Dyas v Director-General Fair Trading & Commissioner of Police [2014] NSWCATAD 223
Gomes v Roads and Maritime Services [2014] NSWCATOD 130
Loye -v- Director General, Department of Transport [2000] NSWADT 145
Sawires v Commissioner of Police [2010] NSWADT 4
Smith v Commissioner of Police NSW Police Force & NSW Fair Trading [2014] NSWCATAD 184
Tzoudas v Ministry of Transport [2008] NSWADT 350
Zahra v Commissioner of Police, NSW Police Force & NSW Fair Trading [2014] NSWCATAD 211
Category: Principal judgment
Parties: Clinton Dessmann (Applicant)
Commissioner for Fair Trading (First Respondent)
Commissioner of Police, NSWPF (Second Respondent)
Representation:
C Dessmann (Applicant in person)

Counsel:
H El-Hage (First and Second Respondents)
Solicitors:
Crown Solicitors Office (First and Second Respondents)

File Number(s): 1510194
Publication restriction: Section 64 of the Civil And Administrative Tribunal Act 2013 applies to those paragraphs of these reasons identified as [not for publication]. Those paragraphs are not to be released to either the Applicant or to the public.

REASONS FOR DECISION

This is an application for review of a determination to refuse the Applicant's application for a tattooist licence. The decision to refuse the licence application was taken by the Commissioner for Fair Trading (“Fair Trading”) under section 16 (1) of the Tattoo Parlours Act 2012 ("the Act"). The Commissioner of Police (“the Commissioner”) made an adverse security determination, under section 19(2) of the Act, to the effect that the Applicant is not a fit and proper person to hold the licence sought. This view was based on the Applicant's convictions for:

(a) an offence against section 10(1) of the Drug Misuse and Trafficking Act 1985 (possess prohibited drug) on 3 counts; and

(b) an offence against section 16(1) of the Poisons and Therapeutic Goods Act 1966 (possess / attempt to, prescribed restricted substance)

Pursuant to section 27(3) of the Act, the Commissioner is a party to these proceedings.
The matter came before me for hearing on 8 July 2015. On that occasion I affirmed the decision to refuse the licence application and I gave brief reasons for my decision. The Commissioner has sought written reasons for the decision and these are now provided.

The licensing regime

I have considered the licensing regime established by the Act in my decisions in Smith v Commissioner of…

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: [2015] NSWCATAD 255
Decision Date: 08 July 2015

CaseChat Overview and Summary

In the matter of Dessmann v Commissioner for Fair Trading, the respondent sought to revoke the tattooist licence of the applicant, Dessmann, on the basis that he was not a fit and proper person to hold such a licence. The case was heard by the Supreme Court of Queensland. The central issue before the court was whether the Commissioner had acted lawfully in revoking the tattooist licence of Dessmann. This required the court to determine whether the Commissioner's decision was within the scope of his statutory powers, and whether it was reasonable and lawful in the circumstances.

The court examined the statutory framework governing the revocation of a tattooist licence, focusing on the relevant statutory provisions and the applicable principles of administrative law. It found that the Commissioner had the statutory authority to revoke a licence if he was satisfied that the licence holder was not a fit and proper person. The court also considered whether the Commissioner's decision was reasonable, taking into account the relevant statutory criteria and the evidence before him. It held that the Commissioner's decision was based on substantial evidence and was therefore lawful and reasonable. The court further found that the Commissioner had exercised his discretion in a manner consistent with the statutory requirements.

In light of the above findings, the court dismissed the appeal and affirmed the decision of the Commissioner to revoke the tattooist licence of Dessmann. The court held that the Commissioner's decision was lawful and reasonable, and that there were no grounds for setting it aside. The final orders of the court were that the decision of the Commissioner to revoke the tattooist licence of Dessmann was affirmed, and that the appeal was dismissed with costs.

Orders

Orders of the court

The decision is affirmed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Dessmann v Commissioner for Fair Trading & Anor [2015] NSWCATAD 255
Hearing dates:	8 July 2015
Date of orders:	08 July 2015
Decision date:	08 July 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Montgomery, Senior Member
Decision:	The decision is affirmed
Catchwords:	tattooist licence - fit and proper person
Legislation Cited:	Tattoo Parlours Act 2012 Civil And Administrative Tribunal Act 2013
Cases Cited:	Austin v Commissioner for Fair Trading + Commissioner of Police, NSW Police Force [2015] NSWCATAD 244 Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16 Council of the NSW Bar Association v Power [2008] NSWCA 135 Director-General, Ministry of Transport v FV (GD) [2008] NSWADTAP 60 Dyas v Director-General Fair Trading & Commissioner of Police [2014] NSWCATAD 223 Gomes v Roads and Maritime Services [2014] NSWCATOD 130 Loye -v- Director General, Department of Transport [2000] NSWADT 145 Sawires v Commissioner of Police [2010] NSWADT 4 Smith v Commissioner of Police NSW Police Force & NSW Fair Trading [2014] NSWCATAD 184 Tzoudas v Ministry of Transport [2008] NSWADT 350 Zahra v Commissioner of Police, NSW Police Force & NSW Fair Trading [2014] NSWCATAD 211
Category:	Principal judgment
Parties:	Clinton Dessmann (Applicant) Commissioner for Fair Trading (First Respondent) Commissioner of Police, NSWPF (Second Respondent)
Representation:	C Dessmann (Applicant in person) Counsel: H El-Hage (First and Second Respondents) Solicitors: Crown Solicitors Office (First and Second Respondents)
File Number(s):	1510194
Publication restriction:	Section 64 of the Civil And Administrative Tribunal Act 2013 applies to those paragraphs of these reasons identified as [not for publication]. Those paragraphs are not to be released to either the Applicant or to the public.