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

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

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…

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: [2018] NSWCATAD 301
Decision Date: 21 December 2018

CaseChat Overview and Summary

In the matter of Fisher v Commissioner for Fair Trading, the applicant, Kim Theresa Fisher, sought a stay of a decision to cancel her tattooist's licence. The dispute was heard in the Administrative Appeals Tribunal. The Commissioner for Fair Trading had decided to cancel Fisher's licence following allegations of unsanitary conditions and failure to comply with health and safety regulations.

The legal issues before the Tribunal involved the statutory powers of the Commissioner for Fair Trading under the Occupational Licensing Act 2000, and the principles of natural justice and procedural fairness. Fisher argued that the decision to cancel her licence was harsh and unreasonable, and that the public interest would be served by allowing her to continue operating until the matter was fully heard and determined. The Commissioner contended that the licence should be cancelled immediately to protect public health and safety.

The Tribunal found that Fisher had made out a prima facie case that the decision to cancel her licence was unreasonable and that the interests of justice required the stay. The Tribunal noted the seriousness of the allegations against Fisher but also recognised that she had a right to be heard and to adduce evidence in her defence. The Tribunal ordered that the Commissioner of Police, NSW Police Force, be joined as a respondent and directed the parties to exchange relevant documents and evidence within specified timeframes. The matter was listed for a hearing to determine the substantive issues on 6 March 2019.

Orders

Orders of the court

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).

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:	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