Roberts v Commissioner for Fair Trading - [2016] NSWCATAD 218

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Roberts v Commissioner for Fair Trading [2016] NSWCATAD 218
Hearing dates: 11 April 2016
Date of orders: 05 October 2016
Decision date: 05 October 2016
Jurisdiction: Administrative and Equal Opportunity Division
Before: S Montgomery, 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
Civil and Administrative Tribunal Act 2013
Cases Cited: ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589
Austin v Commissioner of Fair Trading & Commissioner of Police [2016] NSWCATAP 179
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Dyas v Director-General Fair Trading & Commissioner Of Police [2014] NSWCATAD 223
Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127
Smith v Commissioner of Police & Anor [2014] NSWACTAD 184
Sobey v Commercial and Private Agents Board (1979) 22 SASR 70
Category: Principal judgment
Parties: Stephen Matthew Roberts (Applicant)
Commissioner for Fair Trading (First Respondent)
Commissioner of Police, NSW Police Force (Second Respondent)
Representation:
Counsel:
H El Hage (Respondents)
Solicitors:
J Maspero (Applicant)
Crown Solicitors Office (Respondents)

File Number(s): 1610057
Publication restriction: Section 64 of the Civil and Administrative Tribunal Act 2013 applies to those paragraphs of these reasons identified as [NOT FOR PUBLICATION]. Those paragraphs are not to be released to the Appellant, his legal representatives or to the public.

REASONS FOR DECISION

This is an application by Mr Roberts, the Applicant, seeking review of a decision made by the First Respondent, refusing to grant him an operator licence pursuant to section 16(1) of the Tattoo Parlours Act 2012 (“the Act”).
The Decision was made following an adverse security determination by the Commissioner of Police (“the Commissioner”) pursuant to section 19(1) of the Act. The refusal was made on the bases of the Commissioner's finding that (i) the Applicant is not a fit and proper person to be granted the licence; and (ii) that it would be contrary to the public interest for the licence to be granted. This view was formed on the basis of the Applicant's criminal history.
The Commissioner also provided advice that the Applicant is disqualified from holding certain permits, licences or authorities under the Security Industry Act 1997, the Firearms Act 1996 and the Weapons Prohibition Act 1998.

Background

The Applicant has been a tattoo artist for approximately 23 years. For many years he has operated a tattoo parlour at The Entrance. The parlour is known as 'Skin Circus". Prior to the introduction of the Act he was entitled to do so without a licence.
The Act established a licensing regime for "body art tattooing businesses and body art tattooists". It was introduced with a view to imposing requirements that would have the effect of eradicating criminal elements/links from the tattooing industry.
There are strict prohibitions on body…

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: [2016] NSWCATAD 218
Decision Date: 05 October 2016

CaseChat Overview and Summary

In the case of Roberts v Commissioner for Fair Trading, the parties involved were Roberts, the applicant, and the Commissioner for Fair Trading, the respondent. The dispute centred on the Commissioner's decision to refuse Roberts a tattoo operator licence due to an adverse security determination. The case was heard in the Administrative Decisions (Judicial Review) Act 1977, which governs administrative reviews in Australia. The applicant contested the decision, arguing that it was unreasonable and that the Commissioner had not properly considered relevant factors in making the adverse determination.

The central legal issues revolved around whether the Commissioner's decision to refuse the licence was legally sound and whether the adverse security determination was justified. The applicant contended that the Commissioner had failed to properly assess Roberts' suitability as a fit and proper person to hold a licence, as well as the broader public interest considerations. The court had to determine whether the decision was made in accordance with the law, whether relevant considerations were taken into account, and whether irrelevant considerations were disregarded.

The court found that the Commissioner had followed the correct legal framework in making the decision and had adequately considered the adverse security determination. The court held that the Commissioner was entitled to rely on the security determination as it pertained to Roberts' fitness as a tattoo operator. The court also found that the public interest considerations were appropriately weighed and that the decision was not unreasonable. The applicant's arguments did not successfully challenge the correctness of the Commissioner's decision.

The court affirmed the decision under review, upholding the Commissioner's refusal to grant Roberts a tattoo operator licence. The reasoning and outcome of the case underscored the importance of adhering to legal frameworks and ensuring that relevant considerations are properly assessed when making administrative decisions affecting public safety and interest.

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:	Roberts v Commissioner for Fair Trading [2016] NSWCATAD 218
Hearing dates:	11 April 2016
Date of orders:	05 October 2016
Decision date:	05 October 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Montgomery, 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 Civil and Administrative Tribunal Act 2013
Cases Cited:	ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589 Austin v Commissioner of Fair Trading & Commissioner of Police [2016] NSWCATAP 179 Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Dyas v Director-General Fair Trading & Commissioner Of Police [2014] NSWCATAD 223 Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 Smith v Commissioner of Police & Anor [2014] NSWACTAD 184 Sobey v Commercial and Private Agents Board (1979) 22 SASR 70
Category:	Principal judgment
Parties:	Stephen Matthew Roberts (Applicant) Commissioner for Fair Trading (First Respondent) Commissioner of Police, NSW Police Force (Second Respondent)
Representation:	Counsel: H El Hage (Respondents) Solicitors: J Maspero (Applicant) Crown Solicitors Office (Respondents)
File Number(s):	1610057
Publication restriction:	Section 64 of the Civil and Administrative Tribunal Act 2013 applies to those paragraphs of these reasons identified as [NOT FOR PUBLICATION]. Those paragraphs are not to be released to the Appellant, his legal representatives or to the public.