Perram v Commissioner for Fair Trading

[2018] NSWSC 2038

Supreme Court

New South Wales

Medium Neutral Citation:	Perram v Commissioner for Fair Trading [2018] NSWSC 2038
Hearing dates:	31 July 2018
Date of orders:	31 July 2018
Decision date:	31 July 2018
Jurisdiction:	Common Law
Before:	Walton J
Decision:	The formal order of the Court, in the circumstances, is the prayer for relief in para 1 of the summons filed by the plaintiff on 30 July 2018 is refused. To that extent, the summons is dismissed but not otherwise. The second prayer for relief was not pressed.  I order that the plaintiff, Francis Shane Perram, pay the costs of the first and second defendants of today's proceedings as agreed or, in default, as assessed
Catchwords:	CIVIL PROCEDURE – application for urgent interlocutory relief – application to stay a decision of the Commissioner for Fair Trading – regulation of tattoo parlours under the Tattoo Parlours Act 2012 (NSW) – operator licence – NCAT power pursuant to the Administrative Decisions Review Act 1997 (NSW) – whether the Court should grant a stay of the decision of the delegate – orders – costs
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Tattoo Parlours Act 2012 (NSW)
Category:	Procedural and other rulings
Parties:	Frances Shane Perram (Plaintiff) Commissioner for Fair Trading (First Defendant) Commissioner of Police, New South Wales Police Force (Second Defendant)
Representation:	Counsel: H El-Hage (Defendants)   Solicitors: Lorne Havenstein Lawyers (Plaintiff) Crown Solicitor’s Office (Defendants)
File Number(s):	2018/00233939

ex tempore Judgment

1. HIS HONOUR: By a summons filed on 30 July 2018, the plaintiff, Francis Shane Perram, makes an application for urgent interlocutory relief consisting of two elements.

2. The first relief sought is that there be a stay of a decision of the Commissioner for Fair Trading, the first defendant of 25 July 2018 to refuse to grant the plaintiff an operator licence under the Tattoo Parlours Act 2012 (NSW) (“the Act”) for 14 days from the date of any order made by this Court. The second relief is that the Court grant the plaintiff a temporary operator licence under the Act for 14 days.

3. The application is resisted by the first defendant and the Commissioner for Police, NSW Police Force, the second defendant.

4. The plaintiff relies upon two affidavits in support of the application. The first is an affidavit of the plaintiff's solicitor, Lorne Thomas Havenstein; and the second by the plaintiff himself. There was an objection to parts of the second affidavit which was reserved until I heard argument in relation to the proceedings. Whilst I have the view that many parts of that affidavit are irrelevant for the purposes of the application for reasons I will develop shortly, it is unnecessary to make any final ruling upon that matter in the disposition of the application.

5. The application springs out of a decision made by the delegate for the first defendant on 25 July 2018. The operative part of that decision is as follows:

As an adverse security determination has been made by the Commissioner of Police about the applicant, the application is refused.

6. I note for completeness that there are two determinations made by the delegate which were attached to Mr Havenstein's affidavit, but it is only the first of them which attracts the application in the present case. That is because the second determination relates to an operation at Dee Why which is presently defunct.

7. A little needs to be said about the regime for the regulation of tattoo parlours under the Act before turning to the present application. Section 9 of the Act provides that an “operator licence” may be granted to a licensee. An application for such a licence is the subject matter of the impugned decision. Section 11 provides that the application for a licence is to be made to “the Secretary”, which expression is defined in s 3 of the Act as meaning “the Commissioner for Fair Trading, Department of Finance, Services and Innovation”.

8. Section 14 of the Act deals with the circumstances where the Commissioner receives an application for a licence. Section 14(1)(b) requires that any application which is received by the first defendant requires the first defendant to refer the matter to the Commissioner for Police for investigation and determination as to a number of questions set out in subs (1)(b).

9. Section 19 of the Act provides the roles and responsibilities for the Commissioner of Police in undertaking that investigation, including a question as to “whether it would be contrary to the public interest for the licence to be granted” (see s 19(1)(b)). Section 16(1) of the Act provides that the Secretary may, after considering the application for a licence or the renewal of a licence and the determination of the Commissioner under s 19 on the application, “grant or renew the licence or refuse to grant or renew the licence”. The latter power was exercised in the present case.

10. Importantly, s 16(3)(c) provides that the Secretary must not grant a licence if an adverse security determination has been made by the Commissioner of Police about the application. I note that that expression "adverse security determination" is defined in s 3 and such a determination was made by the Commissioner of Police in the present case.

11. Section 27 of the Act provides that the aggrieved person the subject of an adverse determination by the first defendant as to the refusal to grant a licence may apply to the Civil and Administrative Tribunal New South Wales (“NCAT”) for a full merit review of the decision to refuse the licence. NCAT has a power pursuant to the Administrative Decisions Review Act 1997 (NSW) (“the ADR Act”) to stay a decision of the Commissioner for Fair Trading (see s 60(2) of the ADR Act).

12. One further statutory consideration requires mention before turning to the merits of the present application. It would appear that some savings provisions, which were adopted in relation to the Act, are not presently before the Court. They have the effect of providing that a person who held a licence prior to the passage of the Act, would be permitted to continue to hold that licence, provided the person made an application within a certain period and subject to the determination of that application. That description of the provision is not intended to be wholly accurate but merely reflects, so far as I may, the submission describing it, without demur of the plaintiff, by counsel for the first and second defendants today. Whilst issues about the construction of a provision of that kind might arise, it is unnecessary to determine them for the purposes of these proceedings. I shall proceed as if the operation of the Act is in accordance with those submissions.

13. The second prayer for relief may be dealt with shortly. In my view, there is a significant question as to whether this Court may possess a power to grant the second prayer for relief. It effectively seeks either a merit review of the decision of the Commissioner's delegate or; alternatively, the fresh exercise of power to grant a licence under the Act. I note for completeness that it would appear that the second prayer for relief was not pressed at the end of the day.

14. The gravamen of the application then becomes whether this Court should grant a stay of the decision of the delegate in my judgment. The application for a stay comes in the present circumstances. Firstly, there is no application for judicial review before this Court; nor is there any suggestion in the evidence led by the applicant that such an application is pending or what grounds may be relied upon in support of it.

15. The second observation is that the applicant has not lodged an application for the review of the decision of the delegate of the first defendant under s 27 of the Act. No application for a stay of the decision has been made by the plaintiff; nor is there placed before the Court any indication as to what the nature of such relief may be if it was sought in that jurisdiction. Rather, the evidence merely extends to an indication that an inquiry was made by telephone of an unidentified officer of NCAT seeking information as to how quickly that Tribunal may list an application for a stay. Some doubt was raised by the unidentified officer as to whether that application may be reached by tomorrow, but the relevant officer, of course, had no relevant details as to the application as no application was before NCAT.

16. Those are the background circumstances which operate upon the determination of the Court as to the grant of an interlocutory application.

17. For the reasons which I now give I refuse the application as it was ultimately pressed in relation to an application for a stay for the following reasons:

1. Firstly, in the absence of an application for judicial review or an application for review under the provisions of the Act in an application brought to NCAT, there must be a real question as to the power of this Court to grant the stay as sought and, in any event, serious discretionary issues as to whether the Court ought exercise a power of that kind in the circumstances described.

2. Secondly, and by way of correlation to the first proposition, there is, as I have described it, a specific regime for merit review available under the respective provisions of the Act and the Administrative Decisions Review Act which incorporates a power to grant a stay. I should note specifically that NCAT possesses a power to undertake a full merit review of the determination of the delegate to refuse an application where an adverse security determination has been issued by the Commissioner. In other words, whilst the Secretary is bound to refuse the licence where such an adverse security determination is made, no such limitation exists as a matter of merit upon NCAT.

3. Thirdly, no attempt has been made to seek a merit review before NCAT in the present circumstances.

4. Fourthly, there is no evidence before this Court that had an application been made with a matter of urgency, that NCAT would not have attended to the question of the stay now sought in a way which might have resulted in the determination of the application for a stay before the period in which the licence will presently expire (the close of business tomorrow). In any event, it has not been suggested to me that NCAT’s powers would not extend to the grant of a stay even if the application had come before it after the close of business tomorrow; in other words, that remains an extant consideration.

18. It was simply insufficient for the applicant to take the meagre steps described in the affidavit of Mr Havenstein if it intended to, all other difficulties put aside, to invoke the jurisdiction of this Court such as it is for the grant of urgent interlocutory relief.

19. The formal order of the Court, in the circumstances, is the prayer for relief in para 1 of the summons filed by the plaintiff on 30 July 2018 is refused. To that extent, the summons is dismissed but not otherwise. The second prayer for relief was not pressed.

20. I order that the plaintiff, Francis Shane Perram, pay the costs of the first and second defendants of today's proceedings as agreed or, in default, as assessed.

**********

Decision last updated: 05 March 2019