Fisher v Commissioner for Fair Trading

[2018] NSWCATAD 301

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Fisher v Commissioner for Fair Trading [2018] NSWCATAD 301
Hearing dates:	21 December 2018
Date of orders:	21 December 2018
Decision date:	21 December 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Hennessy LCM, Deputy President
Decision:	1. The Commissioner of Police, NSW Police Force is joined as a Respondent. 2. The Decision made on 10 December 2018 to cancel the Applicant's tattooist licence is stayed pending further order of the Tribunal. 3. Department of Fair Trading is to give to the Tribunal and the other parties the following material: documents under s 58 of the Administrative Decisions Review Act 1997 on or before 29 January 2019. 4. Kim Theresa Fisher is to give to the Tribunal and all other parties the following material: evidence including statements on or before 12 February 2019. 5. Department of Fair Trading and Commissioner of Police, NSW Police Force, is to give to the Tribunal and all other parties the following material: evidence in reply on or before 22 February 2019. 6. The proceeding is listed for hearing on 6 March 2019 at 10 am at John Maddison Tower, Level 10, 86-90 Goulburn Street, Sydney for 3 hour(s).
Catchwords:	INTERLOCUTORY ORDER – occupational licencing -application for a stay of decision to cancel a tattoo parlour licence – interests of the applicant and the public
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW): Children and Young Persons (Care and Protection) Act 1998 (NSW)
Cases Cited:	Loveday v Commissioner for Fair Trading [2018] NSWCATAD 80 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 Re Pelling and Secretary, Department of Aviation [1984] AATA 179; (1984) 5 ALD 638
Category:	Procedural and other rulings
Parties:	Kim Fisher (Applicant) Commissioner for Fair Trading (First Respondent) Commissioner of Police, NSW Police Force (Second Respondent)
Representation:	Counsel: M. Dalla-Pozza (First and Second Respondents)   Applicant (self-represented)
File Number(s):	2018/00390486
Publication restriction:	Nil

REASONS FOR DECISION

1. The Commissioner for Fair Trading cancelled Ms Fisher’s tattoo licence after she was convicted of tattooing a 15 year old youth without obtaining consent from his parents. She has applied to the Tribunal for the decision to be suspended, or “stayed” until the Tribunal makes its final decision. A stay would allow her to continue to work as a sub-contractor in a tattoo parlour. In deciding whether to stay the decision, I must take into account the public interest as well as Ms Fisher’s interests. Taking all the evidence into account, I have decided that a stay should be granted.

Legal principles

2. The general rule is that an application to the Tribunal for an administrative review of a decision does not prevent the decision from taking effect. But the Tribunal may make an order "staying or otherwise affecting the operation of the decision”. The power is set out in s 60 of the Administrative Decisions Review Act 1997 (NSW):

(1) Subject to this section, an application to the Tribunal for an administrative review under this Act of an administratively reviewable decision does not affect the operation of the decision under review or prevent the taking of action to implement that decision.

(2) On the application of any party to proceedings for an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application.

(3) The Tribunal may make an order under this section only if it considers that it is desirable to do so after taking into account:

(a) the interests of any persons who may be affected by the determination of the application, and

(b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and

(c) the public interest.

…

3. For the reasons I gave in Loveday v Commissioner for Fair Trading [2018] NSWCATAD 80 at [5]–[12], s 60(2) and (3) confer a single discretionary power on the Tribunal to grant or refuse a stay. There is no threshold test that needs to be met. Rather, the question of whether a stay is necessary to secure the effectiveness of the hearing is a mandatory consideration that the Tribunal must take into account when exercising the discretion: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39.

4. The phrase “to secure the effectiveness of the determination” includes taking into account circumstances where the applicant is likely to suffer irreparable harm in the sense that no recompense for it can be obtained even if the application for review is successful: Loveday v Commissioner for Fair Trading [2018] NSWCATAD 80 at [13] and [14].

Factual findings

5. On 30 October 2017, Ms Fisher was convicted of tattooing a young person without his parents’ consent and fined $2,000: Children and Young Persons (Care and Protection) Act 1998 (NSW), s 230. She has criminal convictions from 2002 including stealing, various driving offences and possession of prohibited drugs. She admits that she was using drugs at the time of the previous offences but says that she no longer uses drugs. Despite her record, her tattoo licence was renewed for 3 years in July 2017.

6. Ms Fisher works approximately 15 hours a week and expects to earn between $200 and $300 a week over the three week Christmas/New Year period if her licence is re-instated. She has started tattoos for some clients and, if her licence had not been cancelled, would have completed those tattoos during that period. Her financial situation is that her only income, apart from her work as a tattoo artist, is $540 a week Centrelink benefits. Currently $45 a week is being deducted to pay the $2,000 fine. Her expenses include a mortgage of $400 a week and utility and phone bills. She sold her car recently and has $2,000 in the bank. She has no other immediate job prospects.

Consideration

7. A stay is necessary to secure the effectiveness of the hearing. Even if the hearing takes place in three or four weeks, Ms Fisher will not earn between $200 and $300 a week for that period. Given her financial situation, that is a significant amount of money. I am satisfied that if a stay is not granted, she will suffer serious irreparable harm, in the sense that no recompense for it can be obtained if the application for review is successful: Re Pelling and Secretary, Department of Aviation [1984] AATA 179; (1984) 5 ALD 638 at 639.

8. It is in the public interest for tattooists to abide by the law. It is an offence to perform tattooing on a child or young person without first obtaining the consent of a parent. Consent is necessary to protect the interests of children and young people. The level of seriousness of the offence is reflected in the fact that a fine of $2,000 was imposed. I acknowledge that the offence relates directly to the work that Ms Fisher undertakes.

9. Ms Fisher acknowledges that she committed the offence, explains the circumstances in which the offence took place, and says she will not do it again. The fact that the young person looked older or that he and his friend lied to her about his age, does not make her any less culpable.

10. Despite the fact that there is no independent corroboration that Ms Fisher has reformed and will not re-offend, I accept that she is genuinely remorseful and that her intention is not to re-offend. It is highly likely that she will be extremely careful not to re-offend in circumstances where she knows her licence is in jeopardy.

11. I reject the submission that her criminal history assumes a greater significance in the light of the commission of this offence. That history occurred at a time when Ms Fisher was using drugs, some 16 years ago.

Orders and directions

1. The Commissioner of Police, NSW Police Force is joined as a Respondent.

2. The Decision made on 10 December 2018 to cancel the Applicant's tattooist licence is stayed pending further order of the Tribunal.

3. Department of Fair Trading is to give to the Tribunal and the other parties the following material: documents under s 58 of the Administrative Decisions Review Act 1997 on or before 29 January 2019.

4. Kim Theresa Fisher is to give to the Tribunal and all other parties the following material: evidence including statements on or before 12 February 2019.

5. Department of Fair Trading and Commissioner of Police, NSW Police Force, is to give to the Tribunal and all other parties the following material: evidence in reply on or before 22 February 2019.

6. The proceeding is listed for hearing on 6 March 2019 at 10 am at John Maddison Tower, Level 10, 86-90 Goulburn Street, Sydney for 3 hour(s).

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 21 December 2018