Klingberg v Commissioner of Consumer Affairs - [2023] SADC 9

District Court of South Australia
(Civil)
KLINGBERG v COMMISSIONER OF CONSUMER AFFAIRS
[2023] SADC 9
Ruling of his Honour Judge Durrant (ex tempore)
27 January 2023
ADMINISTRATIVE LAW
PROFESSIONS AND TRADES - OTHER PROFESSIONS, TRADES OR CALLINGS
Licensing of particular trades or callings
Appeal against suspension of security agent's licence - if appeal not determined within three months the suspension will, unless otherwise ordered, be stayed - application to extend the suspension until further order - exercise of discretion to extend - factors relevant to extension - statutory obligation to hear and determine appeal as expeditiously as possible.
Held:
(1) Extension of suspension appropriate while Court urgently hears and determines appeal as expeditiously as possible.
(2) Extension of suspension of licence granted.
Security and Investigation Industry Act 1995 (SA) s 23; District Court Act 1991 (SA) s 42, referred to.

KLINGBERG v COMMISSIONER OF CONSUMER AFFAIRS
[2023] SADC 9

The appellant, Wayne Klingberg, operates DBT Security Services as a sole trader and as authorised by a security agents licence issued by the respondent Commissioner of Consumer Affairs under the Security and Investigation Industry Act 1995 (the Act). That licence authorises Mr Klingberg, amongst other things, to perform the function of controlling crowds.
On 9 September 2022, Mr Klingberg was charged by police with indictable offences. First, aggravated causing death by dangerous driving and, as an alternative to that charge, aggravated driving without due care.
Police allege that on 1 July 2022, in the afternoon, Mr Klingberg was driving a car with a passenger who was a prospective employee on Owen Road at Hamley Bridge. The purpose of that journey, says Mr Klingberg, was to show the passenger various sites where Mr Klingberg provided security services and so as to explain the role which the passenger may have fulfilled in the event he was employed by Mr Klingberg.
Police say dashcam footage shows the car being driven by Mr Klingberg in a prolonged, persistent and deliberate course of very bad driving and showing also a number of near-miss collisions and the vehicle leaving the gravel shoulders of the road.
The car being driven by Mr Klingberg rolled over on that day. He was seriously injured requiring hospitalisation and the passenger was killed, tragically dying at the scene. Police do not allege Mr Klingberg had any alcohol or illicit drugs in his system.
Under s.23B of the Act, if the holder of a security agents licence that authorises the licensee to perform the function of controlling crowds is charged by police with an indictable offence the Commissioner must give notice in writing to the holder of the licence suspending the licence until further notice.
On 11 October 2022, such a notice dated 29 September 2022 was served by the Commissioner on Mr Klingberg and the suspension of his licence under s.23B became immediately effective.
Under s.23B of the Act, suspension of the licence may not be revoked by the Commissioner, unless the licence holder is found not guilty, or the qualifying charges are withdrawn or dismissed, and the Commissioner is satisfied revocation would not be contrary to the public interest.
On 28 October 2022, Mr Klingberg appealed to this Court against the decision of the Commissioner to suspend his licence under s.23B. This Court under the Act must hear and determine that appeal as expeditiously as possible. If the appeal is not determined within three months of 28 October 2022, the suspension, unless this Court otherwise orders, will be stayed until the appeal is finally determined or withdrawn. That three-month period expires tomorrow.
The parties anticipated this appeal would not be determined within three months and by interlocutory application dated 16 December 2022 the Commissioner sought an order under s.23E of the Act that the suspension remain in place until further order.
I heard that application urgently on 16 January 2023 and offered to the parties to hear and determine the appeal before the expiry of three months. Mr Klingberg was unavailable as overseas and, in any event, his counsel expressed the preference on the part of Mr Klingberg to await the charge determination in his criminal prosecution, which I was told would occur in February or March 2023. Mr Klingberg considers that there is a prospect the charges will be withdrawn or downgraded and the appeal will be unnecessary and cost and the taking up of the Court's time will be avoided.
I note my availability to determine the appeal within three months because of the obligation imposed by the Parliament on this Court by s.23E to hear and determine this appeal as expeditiously as possible and the identification by the Parliament of the period of three months after which certain consequences will flow.
The parties contended that in determining the application to order the suspension remain in place the principles applicable to the grant of interlocutory injunctions apply. I consider that s.23E reposes a discretion in this Court to extend the suspension. Whether that should be approached like an order for interlocutory injunction does not need to be resolved in this case because the parties accept that a serious question to be tried has been shown by the Commissioner and the determination of the application involves me balancing the interests of the protection of the community and the detriment which Mr Klingberg and third parties may suffer if the suspension is continued. No submission was put that I should exercise the power to stay the decision under s.42D of the District Court Act, but I consider the same question would be enlivened if that was the case.
There is no dispute that the Commissioner was mandated to suspend Mr Klingberg. The Parliament has made it clear that security agents authorised to provide crowd control will, if charged with an indictable offence, be suspended from providing any security services, crowd control or otherwise.
The challenge to the suspension is not based on its correctness, which is accepted. It is premised upon the removal by the Commissioner, following a request by Mr Klingberg, of the crowd control authorisation function. That request was made and acceded to by the Commissioner after the notice of suspension was given.
The result, says Mr Klingberg, is that s.23B did but no longer applies to him and that fact would persuade the Court to grant the appeal and rescind the decision of the Commissioner to suspend and substitute a decision not to suspend.
The Commissioner contends the alleged offending is very serious, that it occurred in the course of the business of Mr Klingberg as a licensed security agent and that the Parliament clearly intended all of the activities of Mr Klingberg be suspended and that it is in the public interest the suspension continues.
For the purposes of this application, I am satisfied that some friends of Mr Klingberg, who are appropriately licensed, have been providing security services to customers of Mr Klingberg utilising persons employed by Mr Klingberg. No detail of that arrangement is given. Mr Klingberg says those persons are providing those services as a gesture of friendship and goodwill and he is concerned that goodwill will expire before the resolution of these appeal proceedings.
I have assumed those services are being provided by those friends on commercial terms previously agreed between customers and Mr Klingberg. I have made that assumption because the Act makes it clear in s.6 that Mr Klingberg is not entitled to any fee or other consideration in respect of the functions performed by those friends as licensed and it is only the holder of an operative licence who can charge for the provision of security services.
While Mr Klingberg may be legitimately concerned his friends will not continue to service the clients of DBT Security, there is no evidential basis upon which I can reach that conclusion, or, if I could reach that conclusion, when that decision might be made.
I do accept that Mr Klingberg has been unable for three months, and will continue to be unable, to obtain an income from providing security services and in the event that the suspension is continued, beyond tomorrow. Parliament clearly had that outcome in mind in enacting the suspension provision in s.23B. In doing so, the Parliament imposed an obligation on this Court to deal with any appeal from such a suspension expeditiously and in fixing a three-month period as the time after which the suspension will be stayed, unless otherwise ordered, the Parliament reposed in this Court a discretion to extend such suspension.
Parliament also had in mind that the resolution of criminal proceedings for indictable offences may take many months, even years, to finalise and the Parliament has been clear in elevating the protection of the public and of consumers of security services over the individual detriment of a licensee in such circumstances.
After three months, the Parliament has acknowledged that if any appeal is not heard the suspension will be stayed, unless a Court decides otherwise. That is why it imposed on this Court the obligation to expeditiously deal with an appeal.
Given that scheme, it was otherwise clearly within the contemplation of Parliament that a licensee may be suspended for much longer than three months. The Parliament must be taken to have known that the prosecution of indictable offences will not ordinarily be complete within three months, particularly if such charges are defended.
Recognising that, what the Parliament has done is draw a distinction between licencees suspended under s.23B on the one hand who have appealed and on the other hand who have not. For those licencees who have appealed, the Parliament has said appeals should be dealt with as expeditiously as possible. As mentioned earlier, I informed the parties that I could hear and determine this appeal within three months.
Mr Klingberg is not to be criticised because that did not occur and nor is he to be disadvantaged because the three months will elapse. I have not had regard to his non-availability in exercising my discretion in that respect.
Having said that, I do consider it is relevant that this Court, in fulfilling its statutory obligation to determine and hear an appeal as expeditiously as possible, that I can now fix a time to hear and determine the appeal urgently.
My comments in that regard should not be taken as any criticism of the counsel currently appearing for Mr Klingberg. Quite the contrary, my comments reflect the statutory obligation imposed by the Parliament on this Court and the recognition of this Court of the impact of suspension on Mr Klingberg and to deal with the very mischief that the Parliament recognised - that suspensions would cause persons such as Mr Klingberg financial and emotional difficulty.
To be clear, in the exercise of my discretion, I have not had regard to the parties' conduct in respect of the expiry of three-months period, but I have considered the exercise of my discretion that the ability of this Court to hear and determine the appeal urgently now is relevant.
I have given little weight to the concern of Mr Klingberg that his friends may not continue to provide the services he previously provided, given that he provided me with no basis for his concern. Further facts may accord that consideration greater weight in the future, but, as it stands, there is no evidence to support his concern and the details of his arrangement with his friends have not been elaborated or explained.
I do accept that continued suspension will be to the detriment of Mr Klingberg. That is, however, a matter the Parliament clearly had regard to when it balanced its desire to suspend licensees on the basis of unproved charges with the obvious impact on individuals and their livelihood.
On balance, I consider it is appropriate to extend the suspension while the Court urgently hears and determines this appeal in accordance with its statutory obligation to do so expeditiously.
I will order an extension of the suspension and grant liberty to apply to bring the matter back before me at short notice. I will hear the parties now to fix a date for hearing of the appeal proper as a matter of urgency.