Owen v Commissioner for Fair Trading - [2017] NSWCATAD 137

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Owen v Commissioner for Fair Trading [2017] NSWCATAD 137
Hearing dates: 9 February 2017
Date of orders: 28 April 2017
Decision date: 28 April 2017
Jurisdiction: Administrative and Equal Opportunity Division
Before: K Ransome, Senior Member
Decision:
1. The decision under review is set aside.
2. The decision is made that the licence is granted.

Catchwords: ADMINISTRATIVE REVIEW - tattoo parlours – tattooist licence - adverse security determination – criminal convictions – rehabilitation - 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
Allen v Commissioner for Fair Trading and Commissioner for Police [2015] NCWCATAD 273 Saadieh v Director-General, Department of Transport [1999] NSWADT 68
Roberts v Commissioner for Fair Trading [2016] NSWCATAD 218
Naziry v Director-General, Ministry of Transport [2004] NSWADT 40
Category: Principal judgment
Parties: Michael James Owen (Applicant)
Commissioner for Fair Trading (First Respondent)
Commissioner of Police (Second Respondent)
Representation:
Counsel:
M Giacomo (First and Second Respondents)
Solicitors:
In Person (Applicant)
NSW Crown Solicitor’s Office (First and Second Respondents)

File Number(s): 2016/00378473
Publication restriction: Section 64 of the Civil and Administrative Tribunal Act 2013 applies to the material filed by the respondents on a confidential basis, 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 or to the public.

reasons for decision

On 19 October 2016 the Commissioner for Fair Trading (Fair Trading) refused an application by Michael James Owen for a tattooist 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 Owen is not a fit and proper person to be granted the licence due to his criminal history and it would be contrary to the public interest for the licence to be granted because of that history.
On 4 November 2016 Mr Owen 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…

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 137
Decision Date: 28 April 2017

CaseChat Overview and Summary

The matter before the court involved Owen, the applicant, and the Commissioner for Fair Trading, the respondent. The dispute centred around the refusal by the Commissioner to grant Owen a licence to operate a tattoo parlour, based on an adverse security determination made due to Owen's criminal convictions. The case was heard in the Civil and Administrative Tribunal of New South Wales. Owen sought a review of the Commissioner's decision, arguing that he had rehabilitated sufficiently and was a fit and proper person to hold a licence. The central legal issues were whether the Commissioner's adverse security determination was justified and whether Owen met the criteria to be considered a fit and proper person to hold a tattooist licence.

The court considered the statutory framework governing the licensing of tattoo parlours and the factors that the Commissioner must take into account when making a security determination. It was established that the Commissioner had the discretion to refuse a licence if there were reasonable grounds to believe that the applicant was not a fit and proper person. The court also examined the evidence regarding Owen's criminal history, rehabilitation efforts, and character references. In determining the weight to be given to the adverse security determination, the court balanced the need to protect public health and safety against the applicant's right to engage in lawful business activities.

After reviewing the evidence and applicable legal principles, the court found that the Commissioner had not adequately justified the adverse security determination in light of Owen's demonstrated rehabilitation and suitability to operate a tattoo parlour. The court held that the Commissioner's decision was unreasonable and set it aside. Consequently, the court made the decision that Owen's application for a licence should be granted.

Orders

Orders of the court

1. The decision under review is set aside.

2. The decision is made that the licence is granted.

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:	Owen v Commissioner for Fair Trading [2017] NSWCATAD 137
Hearing dates:	9 February 2017
Date of orders:	28 April 2017
Decision date:	28 April 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	K Ransome, Senior Member
Decision:	1. The decision under review is set aside. 2. The decision is made that the licence is granted.
Catchwords:	ADMINISTRATIVE REVIEW - tattoo parlours – tattooist licence - adverse security determination – criminal convictions – rehabilitation - 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 Allen v Commissioner for Fair Trading and Commissioner for Police [2015] NCWCATAD 273 Saadieh v Director-General, Department of Transport [1999] NSWADT 68 Roberts v Commissioner for Fair Trading [2016] NSWCATAD 218 Naziry v Director-General, Ministry of Transport [2004] NSWADT 40
Category:	Principal judgment
Parties:	Michael James Owen (Applicant) Commissioner for Fair Trading (First Respondent) Commissioner of Police (Second Respondent)
Representation:	Counsel: M Giacomo (First and Second Respondents) Solicitors: In Person (Applicant) NSW Crown Solicitor’s Office (First and Second Respondents)
File Number(s):	2016/00378473
Publication restriction:	Section 64 of the Civil and Administrative Tribunal Act 2013 applies to the material filed by the respondents on a confidential basis, 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 or to the public.