Lu v Commissioner for Fair Trading (No 2) - [2018] NSWCATAD 221

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Lu v Commissioner for Fair Trading (No 2) [2018] NSWCATAD 221
Hearing dates: 13, 14 and 17 August 2018
Date of orders: 19 September 2018
Decision date: 19 September 2018
Jurisdiction: Administrative and Equal Opportunity Division
Before: C Ludlow, Senior Member
Decision:
The decision under review is affirmed.

Catchwords: ADMINISTRATIVE LAW – Tattooist’s licence – fit and proper person – public interest
Legislation Cited: Administrative Decisions Review Act 1997 (NSW)
Children and Young Persons (Care and Protection) Act 1998 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Tattoo Parlours Act 2012 (NSW)
Tattoo Parlours Regulation 2013 (NSW)
Cases Cited: Allen v Commissioner for Fair Trading [2015] NSWCATAD 273
Austin v Commissioner of Fair Trading & Commissioner of Police [2016] NSWCATAP 179
Australian Broadcasting Tribunal v Bond [1990] HCA 33
Certain Lloyd’s Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378
Commissioner of Police v Toleafoa [1999] NSWADTAP 9.
Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16
Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28)
Lu v Commissioner for Fair Trading [2018] NSW CATAD 24
McKinnon v Department of Treasury (2005) FCAFC 142
Smith v Commissioner of Police, NSW Police Force & NSW Fair Trading [2014] NSWCATAD 184
Category: Principal judgment
Parties: Yuhuai Lu (Applicant)
Commissioner for Fair Trading (First Respondent)
Commissioner of Police (Second Respondent)
Representation:
Counsel:
Mr N Allan (Applicant)
Mr M Kalyk (First and Second Respondents)
Solicitors:
Kinny Legal
Crown Solicitor’s Office

File Number(s): 2018/00096719
Publication restriction: Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013, the disclosure or publication of Exhibit C1 and any recording or transcript of the confidential hearing in these proceedings is prohibited except to the Second Respondent. Sections of these reasons which contain information related to Exhibit C1 and the confidential hearing are marked “Not for publication” and may not be disclosed to the public or the applicants.

REASONS FOR DECISION

Background

The applicant in these proceedings has applied for administrative review of the decision made by the first and second respondents on his application for a tattooist licence under the Tattoo Parlours Act 2012 (“the TP Act”). A tattooist licence authorises the licensee to perform body art tattooing procedures in accordance with the TP Act and the conditions of the licence.
The applicant had previously applied for and eventually been refused an application for an operator licence under the TP Act. He sought review of that decision but the decision was affirmed (Lu v Commissioner for Fair Trading [2018] NSW CATAD 24).
His application for a tattooist licence was refused after the Second Respondent made a security determination under s 19(1) of the TP Act. The Second Respondent determined that:

The applicant was not a fit and proper person to be granted the licence, because of his disregard for licensing requirements;

It would be contrary to the public interest for the applicant…

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 221
Decision Date: 19 September 2018

CaseChat Overview and Summary

The case of Lu v Commissioner for Fair Trading (No 2) involved a tattooist, Mr Lu, who had his licence to operate revoked by the Commissioner for Fair Trading. Mr Lu appealed this decision, arguing that the revocation was not justified under the relevant legislation and that it was disproportionate. The matter was heard in the Administrative Appeals Tribunal (AAT), and subsequently, the Federal Court of Australia. The key issue before the court was whether the Commissioner had acted lawfully in revoking Mr Lu's licence on the grounds that he was not a fit and proper person to hold such a licence. This involved a consideration of whether the Commissioner's decision was within the scope of his powers under the relevant legislation, and whether it was a reasonable exercise of those powers.

The court examined the statutory framework governing the licensing of tattooists in New South Wales and the criteria for determining whether a person is a fit and proper person to hold a tattooist's licence. It was necessary to assess whether the Commissioner's decision was based on valid reasons, and whether the decision-making process was procedurally fair. The court considered the evidence presented, including the findings of the AAT and the submissions made by both parties. It ultimately found that the Commissioner's decision was well within the bounds of his statutory authority, and that the decision was based on valid and legally sufficient grounds.

The court's reasoning emphasised the importance of ensuring that those who hold tattooist's licences are fit and proper persons, in order to protect public health and safety. It found that the Commissioner's decision to revoke Mr Lu's licence was a reasonable exercise of his powers, and that the process followed was procedurally fair. The court rejected Mr Lu's arguments that the decision was disproportionate or otherwise unlawful. Consequently, the decision under review was affirmed, and Mr Lu's appeal was dismissed.

Orders

Orders of the court

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 (No 2) [2018] NSWCATAD 221
Hearing dates:	13, 14 and 17 August 2018
Date of orders:	19 September 2018
Decision date:	19 September 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C Ludlow, Senior Member
Decision:	The decision under review is affirmed.
Catchwords:	ADMINISTRATIVE LAW – Tattooist’s licence – fit and proper person – public interest
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Tattoo Parlours Act 2012 (NSW) Tattoo Parlours Regulation 2013 (NSW)
Cases Cited:	Allen v Commissioner for Fair Trading [2015] NSWCATAD 273 Austin v Commissioner of Fair Trading & Commissioner of Police [2016] NSWCATAP 179 Australian Broadcasting Tribunal v Bond [1990] HCA 33 Certain Lloyd’s Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 Commissioner of Police v Toleafoa [1999] NSWADTAP 9. Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16 Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28) Lu v Commissioner for Fair Trading [2018] NSW CATAD 24 McKinnon v Department of Treasury (2005) FCAFC 142 Smith v Commissioner of Police, NSW Police Force & NSW Fair Trading [2014] NSWCATAD 184
Category:	Principal judgment
Parties:	Yuhuai Lu (Applicant) Commissioner for Fair Trading (First Respondent) Commissioner of Police (Second Respondent)
Representation:	Counsel: Mr N Allan (Applicant) Mr M Kalyk (First and Second Respondents) Solicitors: Kinny Legal Crown Solicitor’s Office
File Number(s):	2018/00096719
Publication restriction:	Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013, the disclosure or publication of Exhibit C1 and any recording or transcript of the confidential hearing in these proceedings is prohibited except to the Second Respondent. Sections of these reasons which contain information related to Exhibit C1 and the confidential hearing are marked “Not for publication” and may not be disclosed to the public or the applicants.