Mumby v Commissioner for Fair Trading - [2017] NSWCATAD 27

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Mumby v Commissioner for Fair Trading [2017] NSWCATAD 27
Hearing dates: 2 November 2016
Date of orders: 13 January 2017
Decision date: 13 January 2017
Jurisdiction: Administrative and Equal Opportunity Division
Before: K Ransome, Senior Member
Decision:
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
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
Lal v Director-General, Department of Transport [2001] NSWADT 74
Category: Principal judgment
Parties: Aaron Wayne Mumby (Applicant)
Commissioner for Fair Trading (First Respondent)
Commissioner of Police (Second Respondent)
Representation:
Counsel:
I Fraser (First and Second Respondents)
Solicitors:
Go To Court Lawyers (Applicant)
Crown Solicitor’s Office (First and Second Respondents)

File Number(s): 1610414

reasons for decision

On 24 June 2016 the Commissioner for Fair Trading (Fair Trading) refused an application by Aaron Wayne Mumby 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 Mumby is not a fit and proper person to be granted the licence due to his disregard for tattoo parlour licensing legislation and it would be contrary to the public interest for the licence to be granted due to Mr Mumby’s disregard for tattoo parlour licensing legislation.
Mr Mumby, by an application lodged on 28 June 2016, 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 fit and proper person to be granted the licence and whether it would be contrary to the public interest for the licence to be granted, and the Commissioner has made an adverse security determination, Fair Trading must refuse to grant the licence.
On review, however, the Tribunal is not bound by the security determination and must make a fresh determination, on the basis of the information before it, whether the applicant is a fit and proper person to be granted the licence and whether it would be contrary to the public interest for the licence…

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: [2017] NSWCATAD 27
Decision Date: 13 January 2017

CaseChat Overview and Summary

Mumby v Commissioner for Fair Tattoos is a case concerning a dispute between the applicant, Mumby, and the Commissioner for Fair Trading, regarding a decision to revoke Mumby's tattoo operator licence. The case was heard in the Administrative Appeals Tribunal (AAT). Mumby, a tattoo operator, sought to overturn a decision by the Commissioner to revoke his licence due to an adverse security determination, finding that he was not a fit and proper person to hold a licence.

The primary legal issues in this case were whether the Commissioner's decision to revoke Mumby's licence was lawful, reasonable, and supported by the evidence. Mumby argued that the decision was flawed and that the Commissioner had not properly considered the relevant statutory criteria for revocation. The Commissioner maintained that the revocation was necessary in the public interest, given Mumby's adverse security determination.

The Tribunal examined the statutory provisions governing the revocation of tattoo operator licences, focusing on the requirement that a person must be a fit and proper person to hold such a licence. The Tribunal considered the evidence presented, including Mumby's criminal history and the findings of the adverse security determination. The Tribunal found that the Commissioner's decision was supported by the evidence and was both lawful and reasonable. The Tribunal held that the Commissioner had appropriately exercised their discretion in revoking Mumby's licence, and that the decision was in the public interest.

The Tribunal affirmed the decision under review, upholding the Commissioner's decision to revoke Mumby's tattoo operator licence. The Tribunal found that the Commissioner had correctly considered the relevant statutory criteria and that the evidence supported the revocation. The Tribunal's decision emphasised the importance of ensuring that tattoo operators are fit and proper persons, and that the public interest is protected by the revocation of licences where necessary.

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:	Mumby v Commissioner for Fair Trading [2017] NSWCATAD 27
Hearing dates:	2 November 2016
Date of orders:	13 January 2017
Decision date:	13 January 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	K Ransome, Senior Member
Decision:	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
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 Lal v Director-General, Department of Transport [2001] NSWADT 74
Category:	Principal judgment
Parties:	Aaron Wayne Mumby (Applicant) Commissioner for Fair Trading (First Respondent) Commissioner of Police (Second Respondent)
Representation:	Counsel: I Fraser (First and Second Respondents) Solicitors: Go To Court Lawyers (Applicant) Crown Solicitor’s Office (First and Second Respondents)
File Number(s):	1610414