Loveday v Commissioner for Fair Trading - [2018] NSWCATAD 80

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Loveday v Commissioner for Fair Trading [2018] NSWCATAD 80
Hearing dates: 3 April 2018
Date of orders: 11 April 2018
Decision date: 11 April 2018
Jurisdiction: Administrative and Equal Opportunity Division
Before: Hennessy LCM, Deputy President
Decision:
1. The application for a stay of the decision to refuse to grant the Applicant a licence is refused.
2. Disclosure of an extract from the unredacted Adverse Security Determination dated 22 November 2017 is restricted to the Second Respondent, the legal representatives for the Second Respondent and the Tribunal pursuant to section 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW).
3. That part of the hearing dealing with the documents referred to in order 2 is to be conducted in the absence of the Applicant and the public pursuant to s 49(2) and s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 and s 27(4)(b) of the Tattoo Parlours Act 2012.
4. The publication of that part of the hearing dealing with the documents referred to in order 2 is prohibited pursuant to s 64(1)(b) and (c) of the Civil and Administrative Tribunal Act 2013.

Catchwords: INTERLOCUTORY ORDER – occupational licencing -application for a stay of decision not to grant a tattoo parlour operator’s licence – interests of the applicant and the public
Legislation Cited: Administrative Appeals Tribunal Act 1975 (Cth), s 41
Administrative Decisions Review Act 1997 (NSW), s 60
Civil and Administrative Tribunal Act 2013 (NSW), s 49(2), s 64(1)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 10(1)(b)
Tattoo Parlours Act 2012 (NSW), s 6, s 23, s 27(4)(b)
Cases Cited: AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81
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
Re Scott and Australian Securities and Investments Commission [2009] AATA 798
Williamson v Director General, Department of Transport [2000] NSWADT 165
Category: Procedural and other rulings
Parties: Catherine Loveday (Applicant)
Commissioner for Fair Trading (First Respondent)
Commissioner of Police, NSW Police Force (Second Respondent)
Representation:
Counsel:
A Isaacs (Applicant)
D New (Respondents)
Solicitors:
Blue Water Legal (Applicant)
Crown Solicitor’s Office (Respondents)

File Number(s): 2018/00040761
Publication restriction: See orders 2, 3 and 4 above.

REASONS FOR DECISION

Overview

The Commissioner for Fair Trading has refused Ms Loveday’s application to be granted an operator’s licence under the Tattoo Parlours Act 2012 (NSW). An operator’s licence authorises the licensee to carry on a body art tattooing business. She has applied to the Tribunal for the decision refusing the licence to be suspended, or “stayed” until the Tribunal makes its final decision. A stay would allow her to continue operating the tattooing business, Tattoo Nation, in Port Macquarie. In deciding whether to suspend the Commissioner’s decision I must take into account the public interest as well as Ms Loveday’s interests and those of her employees. I have…

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 80
Decision Date: 11 April 2018

CaseChat Overview and Summary

In the matter of Loveday v Commissioner for Fair Trading, the applicant sought a stay of the decision by the Commissioner for Fair Trading, as the licensing authority, to refuse to grant the applicant a licence to operate a tattoo parlour. The dispute centred on the refusal of the Commissioner to grant the applicant a licence due to concerns regarding the applicant's suitability and the potential risk to public health and safety. The application was heard by the Civil and Administrative Tribunal (CAT) in New South Wales.

The central legal issues the court needed to address were whether the applicant's interests and the public interest warranted a stay of the decision to refuse the licence and, if so, under what conditions such a stay could be granted. The court also had to consider the appropriate level of disclosure and privacy regarding sensitive information contained in the adverse security determination that underpinned the refusal decision.

The tribunal found that the applicant's interests did not outweigh the public interest in maintaining the refusal decision, as the applicant had not provided sufficient evidence to rebut the presumption of unsuitability arising from the adverse security determination. The court emphasised the importance of public health and safety in the operation of tattoo parlours. Regarding the disclosure of the adverse security determination, the tribunal ruled that while the applicant had a right to know the grounds for the refusal, the sensitive nature of the information warranted restrictions on disclosure to protect the privacy and security interests involved. Consequently, the application for a stay was refused, and specific measures were put in place to manage the disclosure and publication of sensitive information during the proceedings.

In summary, the tribunal refused the applicant's request for a stay of the refusal to grant a tattoo parlour operator’s licence. It imposed restrictions on the disclosure of an extract from the adverse security determination to protect privacy and security interests. The sensitive part of the hearing and any subsequent publication was to be conducted in the absence of the applicant and the public, and publication of that part was also prohibited.

Orders

Orders of the court

1. The application for a stay of the decision to refuse to grant the Applicant a licence is refused.

2. Disclosure of an extract from the unredacted Adverse Security Determination dated 22 November 2017 is restricted to the Second Respondent, the legal representatives for the Second Respondent and the Tribunal pursuant to section 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW).

3. That part of the hearing dealing with the documents referred to in order 2 is to be conducted in the absence of the Applicant and the public pursuant to s 49(2) and s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 and s 27(4)(b) of the Tattoo Parlours Act 2012.

4. The publication of that part of the hearing dealing with the documents referred to in order 2 is prohibited pursuant to s 64(1)(b) and (c) of the Civil and Administrative Tribunal Act 2013.

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:	Loveday v Commissioner for Fair Trading [2018] NSWCATAD 80
Hearing dates:	3 April 2018
Date of orders:	11 April 2018
Decision date:	11 April 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Hennessy LCM, Deputy President
Decision:	1. The application for a stay of the decision to refuse to grant the Applicant a licence is refused. 2. Disclosure of an extract from the unredacted Adverse Security Determination dated 22 November 2017 is restricted to the Second Respondent, the legal representatives for the Second Respondent and the Tribunal pursuant to section 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW). 3. That part of the hearing dealing with the documents referred to in order 2 is to be conducted in the absence of the Applicant and the public pursuant to s 49(2) and s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 and s 27(4)(b) of the Tattoo Parlours Act 2012. 4. The publication of that part of the hearing dealing with the documents referred to in order 2 is prohibited pursuant to s 64(1)(b) and (c) of the Civil and Administrative Tribunal Act 2013.
Catchwords:	INTERLOCUTORY ORDER – occupational licencing -application for a stay of decision not to grant a tattoo parlour operator’s licence – interests of the applicant and the public
Legislation Cited:	Administrative Appeals Tribunal Act 1975 (Cth), s 41 Administrative Decisions Review Act 1997 (NSW), s 60 Civil and Administrative Tribunal Act 2013 (NSW), s 49(2), s 64(1) Crimes (Sentencing Procedure) Act 1999 (NSW), s 10(1)(b) Tattoo Parlours Act 2012 (NSW), s 6, s 23, s 27(4)(b)
Cases Cited:	AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 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 Re Scott and Australian Securities and Investments Commission [2009] AATA 798 Williamson v Director General, Department of Transport [2000] NSWADT 165
Category:	Procedural and other rulings
Parties:	Catherine Loveday (Applicant) Commissioner for Fair Trading (First Respondent) Commissioner of Police, NSW Police Force (Second Respondent)
Representation:	Counsel: A Isaacs (Applicant) D New (Respondents) Solicitors: Blue Water Legal (Applicant) Crown Solicitor’s Office (Respondents)
File Number(s):	2018/00040761
Publication restriction:	See orders 2, 3 and 4 above.