Lu v Commissioner for Fair Trading - [2018] NSWCATAD 24

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Lu v Commissioner for Fair Trading [2018] NSWCATAD 24
Hearing dates: 14 June 2017 & 19 June 2017
Date of orders: 25 January 2018
Decision date: 25 January 2018
Jurisdiction: Administrative and Equal Opportunity Division
Before: K Ransome, Senior Member
Decision:
(1) The decision under review is affirmed.

Catchwords: ADMINISTRATIVE REVIEW - tattoo parlours - tattoo operator licence - adverse security determination - fit and proper person - public interest
Legislation Cited: Tattoo Parlours Act 2012
Tattoo Parlours Regulation 2013
Cases Cited: Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179
Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127
AJO v Director-General of Transport [2012] NSWADT 101
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Sobey v Commercial and Private Agents Board (1979) 22 SASR 70
Smith v Commissioner of Police & Commissioner for Fair Trading [2014] NSWCATAD 184
Roberts v Commissioner for Fair Trading [2016] NSWCATAD 218
Naziry v Director-General, Ministry of Transport [2004] NSWADT 40
Lal v Director-General, Department of Transport [2001] NSWADT 74
Category: Principal judgment
Parties: Yuhuai Lu (Applicant)
Commissioner for Fair Trading (First Respondent)
Commissioner of Police, NSW Police Force (Second Respondent)
Representation:
Counsel:
N Allen (Applicant)
M Kalyk (First and Second Respondents)
Solicitors:
Prudential Legal (Applicant)
NSW Crown Solicitor’s Office (First and Second Respondents)

File Number(s): 2017/0046979
Publication restriction: Section 64 of the Civil and Administrative Tribunal Act 2013 applies to the material filed by the second respondent on a confidential basis, to those paragraphs of these reasons identified as [Not for publication], to the evidence given in private before the Tribunal and to the record of that part of the proceedings conducted in private pursuant to s 49. That material is not to be released to either the applicant, the first respondent or to the public.

reasons for decision

On 3 February 2017 the Commissioner for Fair Trading (Fair Trading) refused an application by Yuhuai Lu for an operator licence under the Tattoo Parlours Act 2012 (the Act). The reason for the refusal was because the Commissioner of Police (the Commissioner) had made an adverse security determination under s 19(2) of the Act. The Commissioner had determined that Mr Lu is not a fit and proper person to be granted the licence because of his history of disregard for licensing legislation and it would be contrary to the public interest for the licence to be granted because of that disregard.
Mr Lu, by an application lodged on 2 March 2017, has sought review of that decision by the Tribunal.

Nature of review

A person whose application for a licence under the Act has been refused may apply to this Tribunal for an administrative review of that decision (s 27(1)).
In circumstances where, in accordance with s 14 of the Act, Fair Trading has referred a licence application to the Commissioner for an investigation and determination as to whether the applicant is a…

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 24
Decision Date: 25 January 2018

CaseChat Overview and Summary

The case of Lu v Commissioner for Fair Trading was heard in the New South Wales Supreme Court. The appellant, Mr Lu, appealed against a decision made by the Commissioner for Fair Trading regarding his application for a tattoo operator licence. The Commissioner had refused to grant the licence on the grounds that Mr Lu was not a fit and proper person, due to an adverse security determination made under the Security and Counter-Terrorism Act 2002 (NSW). The appeal was based on the argument that the adverse security determination was irrelevant and should not have been considered in the decision-making process.

The central legal issues revolved around the interpretation and application of the relevant statutory provisions, specifically whether the adverse security determination was a proper consideration for the Commissioner in assessing Mr Lu's fitness to hold a tattoo operator licence. Additionally, the court had to consider the weight to be given to the adverse security determination and whether it was an appropriate basis for denying the licence under the statutory scheme.

In delivering the judgment, the court held that the adverse security determination was a relevant factor to consider when assessing Mr Lu's fitness to hold a tattoo operator licence. The court found that the adverse security determination was a material consideration and could be taken into account when assessing whether Mr Lu was a fit and proper person. The court also held that the Commissioner was entitled to weigh the adverse security determination as a relevant factor in the overall assessment. Consequently, the court dismissed the appeal and affirmed the Commissioner's decision.

The court further ordered that the decision under review be affirmed, meaning that Mr Lu's application for a tattoo operator licence was denied. The court's decision emphasised the importance of public safety and the need to ensure that tattoo operators are fit and proper persons, particularly in light of the potential risks associated with the tattooing industry.

Orders

Orders of the court

(1) The decision under review is affirmed.

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:	Lu v Commissioner for Fair Trading [2018] NSWCATAD 24
Hearing dates:	14 June 2017 & 19 June 2017
Date of orders:	25 January 2018
Decision date:	25 January 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	K Ransome, Senior Member
Decision:	(1) The decision under review is affirmed.
Catchwords:	ADMINISTRATIVE REVIEW - tattoo parlours - tattoo operator licence - adverse security determination - fit and proper person - public interest
Legislation Cited:	Tattoo Parlours Act 2012 Tattoo Parlours Regulation 2013
Cases Cited:	Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127 AJO v Director-General of Transport [2012] NSWADT 101 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Smith v Commissioner of Police & Commissioner for Fair Trading [2014] NSWCATAD 184 Roberts v Commissioner for Fair Trading [2016] NSWCATAD 218 Naziry v Director-General, Ministry of Transport [2004] NSWADT 40 Lal v Director-General, Department of Transport [2001] NSWADT 74
Category:	Principal judgment
Parties:	Yuhuai Lu (Applicant) Commissioner for Fair Trading (First Respondent) Commissioner of Police, NSW Police Force (Second Respondent)
Representation:	Counsel: N Allen (Applicant) M Kalyk (First and Second Respondents) Solicitors: Prudential Legal (Applicant) NSW Crown Solicitor’s Office (First and Second Respondents)
File Number(s):	2017/0046979
Publication restriction:	Section 64 of the Civil and Administrative Tribunal Act 2013 applies to the material filed by the second respondent on a confidential basis, to those paragraphs of these reasons identified as [Not for publication], to the evidence given in private before the Tribunal and to the record of that part of the proceedings conducted in private pursuant to s 49. That material is not to be released to either the applicant, the first respondent or to the public.