Fantini v Commissioner for Consumer Affairs - [2009] SADC 78

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
FANTINI v COMMISSIONER FOR CONSUMER AFFAIRS
[2009] SADC 78
Judgment of Her Honour Judge Cole
29 July 2009
ADMINISTRATIVE LAW
Appeal from the refusal by the respondent of an application for registration as a sales representative pursuant to the Land Agents Act 1994 - prior criminal history of appellant considered - whether charges were indictable offences - appeal dismissed.
Land Agents Act 1994; Crimes Act 1915; Criminal Law Consolidation Act 1935-1975; Justices Act 1921-1981; Local and District Criminal Courts Act 1926-1975, referred to.
R v Ward (1918) VLR 418; R v Adams (1995) 66 SASR 285; Ross v The Queen (1979) 141 CLR 432; The Queen v Doyle (1980) 48 FLR 92; Brogden v Commissioner of the Police Service 122 (2001) A Crim R 394, considered.

FANTINI v COMMISSIONER FOR CONSUMER AFFAIRS
[2009] SADC 78

Mr Fantini applied to the Commissioner for Consumer Affairs (“the Commissioner”) to be registered as a sales representative pursuant to the Land Agents Act 1994. The Commissioner refused that application. Mr Fantini appealed to this Court against that refusal. At the hearing of the appeal, Mr dal Cin appeared for the appellant, and Ms Willows appeared for the respondent.
Facts
The facts relevant to this appeal were not in dispute, and are set out in the affidavit of Graham Philip Close, the Manager of Licensing Operations in the Occupational Services Section of the Office of Consumer and Business Affairs.
The Commissioner received Mr Fantini’s application for registration as a sales representative under the Land Agents Act 1994 on 27 January 2009. A copy of a National Police Certificate (“the Certificate”) in relation to Mr Fantini was provided with the application. The Certificate disclosed the following court outcomes in relation to Mr Fantini:
·on 12 October 1988, Mr Fantini was convicted of 3 counts of false pretences and one count of attempted false pretences. A term of 6 months imprisonment was imposed in relation to one of the counts of false pretences and suspended on Mr Fantini entering into a bond to be of good behaviour for 6 months.
·on 22 June 2006, Mr Fantini was convicted of being present at an unlawful game; playing a game of chance with a gaming table or instrument. He was fined $100.
·on 6 July 2006, Mr Fantini was found guilty of possessing a firearm without a licence, possessing an unregistered firearm, failing to keep a class C, D or H firearm secured and failing to store ammunition in a locked container. Penalties were imposed without conviction; a bond in relation to the first count and fines in relation to the other three.
·on 14 June 2007, Mr Fantini was convicted of driving an unregistered vehicle and fined $70.
·on 5 December 2007, Mr Fantini was found to have breached the bond imposed on 6 July 2006, and he was fined $6,000.
·on 25 November 2008, Mr Fantini was convicted of keeping a brothel…

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.

Continue reading Fantini v Commissioner for Consumer Affairs

Details

AGLC: Fantini v Commissioner for Consumer Affairs [2009] SADC 78
Case: [2009] SADC 78
Decision Date: 29 July 2009

CaseChat Overview and Summary

The case of Fantini v Commissioner for Consumer Affairs concerned an appeal by Mr Fantini against the Commissioner for Consumer Affairs’ refusal to register him as a sales representative under the Land Agents Act 1994. The Commissioner's refusal was based on Mr Fantini's prior criminal convictions, which were deemed to be indictable offences of dishonesty, disqualifying him from registration. The central issue was whether the charges Mr Fantini faced in 1988 constituted indictable offences as defined by the Land Agents Act 1994. The District Court of South Australia heard the appeal, with Mr dal Cin representing the appellant and Ms Willows representing the respondent.

The court examined the nature of Mr Fantini's 1988 convictions for false pretences and attempted false pretences. Mr dal Cin argued that these offences, although tried in the Adelaide Magistrates Court, should not be considered indictable offences due to the procedural context of their trial. However, the court rejected this argument, finding that the characterisation of offences as indictable or summary is determined by the statutory provisions and not by the court in which they are tried. The court referred to several authorities, including the decision in Ross v The Queen, which supported the view that the manner of trial does not alter the fundamental nature of the offence. Therefore, the court concluded that Mr Fantini's convictions were indeed indictable offences, thereby disqualifying him from registration as a sales representative.

In light of this conclusion, the court found that the Commissioner's decision to refuse Mr Fantini's application for registration was correct. The appeal was dismissed, and the court upheld the Commissioner's decision.

Orders