Jay v Commissioner for Fair Trading

[2014] NSWCATAD 180

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Jay v Commissioner for Fair Trading [2014] NSWCATAD 180
Hearing dates:	14 October 2014
Decision date:	24 October 2014
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	N Hennessy LCM, Deputy President
Decision:	The operation of the decision to refuse to grant the applicant a licence is stayed and the applicant is granted a temporary operator's licence under the Tattoo Parlours Act 2012 pending the determination of these proceedings.
Catchwords:	CIVIL AND ADMINISTRATIVE TRIBUNAL - administrative review jurisdiction - security determination under Tattoo Parlours Act 2012 - application for operator's licence refused - stay application
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Tattoo Parlours Act 2012 (NSW)
Cases Cited:	Williamson v Director General, Department of Transport [2000] NSWADT 165
Category:	Interlocutory applications
Parties:	Sacha Jay (Applicant) Commissioner for Fair Trading (First Respondent) Commissioner of Police (Second Respondent)
Representation:	Counsel H El-Hage (Respondent) S & P Lawyers (Applicant) Crown Solicitors Office (Respondent)
File Number(s):	1410474
Publication restriction:	Section 75(2) of the Administrative Decisions Tribunal Act 1997 applies to those paragraphs of these reasons identified as '[not for publication]'. Those paragraphs are not to be released to the Applicant or the public.

reasons for decision

Introduction

1. The Commissioner for Fair Trading refused Mr Jay's application for an operator's licence under the Tattoo Parlours Act 2012 (NSW). He had been operating a tattoo parlour without the need for a licence for the previous three years but was required to cease trading on 20 August 2014. Mr Jay has applied for a stay of that decision so that he can continue to operate until the Tribunal makes a final decision as to whether he should be licenced. The hearing is listed for 12 November 2014.

1. When Mr Jay applied for the licence, the Commissioner of Fair Trading referred the application to the Commissioner of Police who made an adverse security determination about him based on confidential criminal intelligence. In those circumstances, the Commissioner for Fair Trading was obliged to refuse the application.

1. Section 19(1) of the Tattoo Parlours Act allows the Commissioner of Police to determine whether an applicant is a fit and proper person to be granted a licence and whether it would be contrary to the public interest for the licence to be granted. In making that determination the Commissioner may have regard to any "criminal intelligence report or other criminal information held in relation to an applicant." But, under s 19(3), the Commissioner may only have regard to a report or information that:

(a) is relevant to the business or procedures proposed to be carried on or performed, or carried on or performed, under the licence, or

(b) causes the Commissioner to conclude that improper conduct is likely to occur if the applicant were granted the licence or the licensee continued to hold the licence, or

(c) causes the Commissioner not to have confidence that improper conduct will not occur if the applicant were granted the licence or the licensee continued to hold the licence.

Power to stay a decision

1. 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.

(4) While an order is in force under this section (including an order that has previously been varied on one or more occasions under this subsection), the Tribunal may, on application by a party to the proceedings, vary or revoke the order by another order.

Meaning of "staying or otherwise affecting the operation of the decision"

1. Because this case involves the refusal of an application for a licence, the staying of that decision would mean that Mr Jay does not have a licence. But s 60 also gives the Tribunal power to make an order "otherwise affecting the operation of the decision". In AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 at [16] Basten JA described the word "stay" as "a somewhat imprecise term which is usually understood to refer to a future event". In that case, which involved the revocation of a licence, the Court of Appeal acknowledged at [16] to [18] and [95] to [96] that while it is not possible to "stay" the revocation decision, s 60(2) is wide enough to enable the Tribunal temporarily to reinstate a licence that has been revoked.

1. Applying the same reasoning to this case, the Tribunal has power to make an order which has the effect of temporarily granting an operator's licence to enable the situation prior to the decision to continue. This is an unusual case because Mr Jay was operating without the need for a licence before the decision was made.

Threshold issue - securing the effectiveness of the determination

1. A threshold issue for the Tribunal is whether it is appropriate to grant a stay to "secure the effectiveness of the determination of the application". In Williamson v Director General, Department of Transport [2000] NSWADT 165 the Administrative Decisions Tribunal gave examples of cases where the Administrative Appeals Tribunal had interpreted that phrase in the equivalent Commonwealth provision - s 41 of the Administrative Appeals Tribunal Act 1975 (Cth). In those decisions, the AAT held that the phrase means that without a stay:

(1)   the hearing will not be fully effective: Australian (NDT) Services Pty Ltd and Civil Aviation Safety Authority [1999] AATA 79 at [13];

(2)   the hearing will be "jeopardised" or "rendered nugatory": Re Repatriation Commission and Delkou (1985) 8 ALD 454 at [8];

(3)   the applicant 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) 5 ALD 638 at 639.

1. In Williamson at [15] and [20] the Tribunal gave examples of situations where a stay may be necessary to secure the effectiveness of the hearing including where an applicant "has ceased trading or is unable to restart operations" or will lose "reasonable employment prospects".

1. Recently the Court of Appeal explained the threshold test as applying to circumstances where there is no "practical point" in reviewing the decision if a stay is not granted or the applicant will be deprived temporarily of the benefit of a favourable decision:

There is an express statutory power for the Tribunal to grant or refuse a stay or other order "as it considers appropriate to secure the effectiveness of the determination of the application". In other words, the purpose of granting a stay or other order is connected with the determination of the application. "[S]ecur[ing] the effectiveness of the determination of the application" involves matters such as ensuring that the lapse of time before the determination is actually made does not deprive the review of practical point. It also involves considering the possibility that the result of the review might be that the decision is affirmed, with the consequence that if a s 60(2) order is granted the decision that the review ultimately decides was correct has not been implemented during the period of the s 60(2) order: AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 at [129] (Campbell JA, Handley JA agreeing)

Evidence of threshold issue

1. Mr Jay's evidence was that he could no longer sustain the financial burden of maintaining his business while not receiving any income from that business. His assets include a home unit, which he is currently attempting to rent out, and a property which he has recently purchased using equity from the unit. He hopes to use the property to operate his business. Both properties are mortgaged. Mr Jay said that he will not be in a financial position to resume trading after the hearing if a stay is not granted. He said he has been borrowing money from his mother and his partner to continuing paying his debts but they are no longer able to provide him with further funds.

1. His oral evidence was supported by a print out of his National Australia Bank internet banking history for the period 15 September 2014 to 13 October 2014. That document shows that he currently has a balance of $1,639.91 in his account. He has not applied for benefits from Centrelink in the short time since the decision was made. Nor has he applied for any other employment. Mr Jay said that his employment prospects are limited. His only skill is as a tattoo artist and he says there are few job opportunities in the area in which he lives. The documentary evidence on this point consisted of a two page print out from a website called "indeed." While Mr Jay has not applied for any kind of job since the Commissioner made the decision, I accept that his prospects of employment as a tattoo artist or in any other unskilled occupation in the short term are poor.

Interests of the parties

1. Mr Jay's interests are his financial and personal interests in continuing to operate his business. Mr Jay has employed Mr Tran as a tattoo artist on a full time basis since February 2012. He also has an interest in a stay being granted. He has a mortgage and says that his prospects of employment as a tattoo artist in the area are very poor.

Mr Jay's criminal record

1. Mr Jay was convicted of common assault on 10 June 2008. He was released on a good behaviour bond for 12 months under s 9 of the Crimes (Sentencing Procedure) Act 1999.

1. On 6 March 2009 Mr Jay was convicted of driving with alcohol in his blood, fined $250 and disqualified from driving for 3 months.

Confidential information

1. [Not for publication].

1. [Not for publication].

1. [Not for publication].

1. [Not for publication].

1. [Not for publication].

1. [Not for publication].

1. [Not for publication].

1. [Not for publication].

1. [Not for publication].

Character references

1. Clients and friends of Mr Jay provided references as to his good character. These references have relatively low probative value in determining Mr Jay's fitness.

Public interest

1. [Not for publication].

1. According to Mr Jay, he has not been, nor is he currently, involved in any criminal organisation. He submits that because his conviction was not related to organised crime and occurred before he became a tattoo artist, there is no risk to the public interest if he continues to operate his business.

Conclusion

1. Mr Jay has been operating a tattoo parlour for approximately 3 years. Under the new legislative scheme he now requires a licence. The Commissioner of Police has refused his application for a licence based, to some extent, on criminal intelligence information. That information has not been disclosed to Mr Jay.

1. Based on all the evidence, I am satisfied that it is not contrary to the public interest for Mr Jay to be permitted to continue operating his business between now and the date on which the Tribunal determines his application. The hearing is listed in 4 weeks' time, on 12 November 2014. A decision will be handed down shortly after the hearing.

1. [Not for publication].

1. Mr Jay has a strong financial and personal interest in continuing to operate his business and there is virtually no risk to the public interest in the short term if he is permitted to continue trading.

Order

The operation of the decision to refuse to grant the applicant a licence is stayed and the applicant is granted a temporary operator's licence under the Tattoo Parlours Act 2012 pending the determination of these proceedings.

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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: 24 October 2014