Russell v The Commissioner for Consumer Affairs - [2014] SADC 1

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
RUSSELL v THE COMMISSIONER FOR CONSUMER AFFAIRS
[2014] SADC 1
Judgment of His Honour Judge Millsteed
14 January 2014
ADMINISTRATIVE LAW
PROFESSIONS AND TRADES - OTHER PROFESSIONS, TRADES OR CALLINGS - LICENSING OF PARTICULAR TRADES OR CALLINGS
Appeal against a decision of the Commissioner for Consumer Affairs refusing Appellant's application for a security agents licence under Security and Investigation Agents Act 1995 - whether cogent reasons to depart from the delegate's decision - whether delegate erred in finding Appellant was not a 'fit and proper person'.
Held: Delegate had not demonstrably erred in refusing application for licence - cogent reasons to depart from the decision-maker's decision not established - appeal dismissed.
Security & Investigation Agents Act 1995 (SA) s 8, s 8A, s 9A, s 11, s 31; District Court Act 1991 (SA) s 42E, referred to.
Commissioner for Consumer Affairs v Sollars (2001) 79 SASR 145, 147; Sobey v Commissioner for Consumer Affairs (1979) 22 SASR 70, 76; Petracaro v Commissioner for Consumer Affairs (1994) 62 SASR 387, 390, considered.

RUSSELL v THE COMMISSIONER FOR CONSUMER AFFAIRS
[2014] SADC 1
Introduction

This is an appeal by Peter Russell (‘the Appellant’) under s 11(1) of the Security and Investigation Agents Act 1995 (SA) (‘the Act’) against a decision by a delegate of the Commissioner of Consumer Affairs (‘the Respondent’) to refuse the Appellant’s application for a restricted security agent’s licence under s 8 of the Act.[1]
[1] The Act has since been amended by the Security and Investigation Agents (Miscellaneous) Amendment Act 2013, assented to on 18 April 2013, which will come into operation on a day fixed by proclamation. The references to the Act refer to the legislation as it applied at the time of the decision.
The Act
The Act imposes an obligation on a person to be licensed in order to carry on business or otherwise act as a security agent or investigation agent. The power to grant such licences is vested in the Respondent[2] but may be delegated by the Respondent to any person by instrument in writing.[3] Licences may be subject to conditions specified in s 7A.
[2] Section 9.
[3] Section 31.
An application for a licence must be made to the Respondent in the manner and form approved by the Respondent and accompanied by a fee fixed by regulation.[4] An applicant must provide the Respondent with such evidence as the Respondent thinks appropriate as to the identity, age and address of the applicant and other information required by the Respondent for the purposes of determining the application.[5] The Respondent is required to inform the Commissioner of Police of the application.[6] The Commissioner of Police may object to the application.[7]
[4] Section 8(1).
[5] Section 8(2).
[6] Section 8A(1).
[7] Section 8A(3).
Section 9(1) entitles a natural person to be licensed if specified requirements are met. Relevantly, at the time of the application s 9(1) read:
(1) Subject to section 9A,…

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: [2014] SADC 1
Decision Date: 14 January 2014

CaseChat Overview and Summary

The case of Russell v The Commissioner for Consumer Affairs involved an appeal against the Commissioner's refusal to grant the appellant a security agents licence under the Security and Investigation Agents Act 1995. The appellant challenged the decision on the grounds that there were cogent reasons to depart from the delegate's decision, and that the delegate had erred in determining that the appellant was not a 'fit and proper person' to hold such a licence.

The court was required to examine whether the delegate had demonstrably erred in refusing the appellant's application and whether there were cogent reasons to depart from the delegate's decision. Specifically, the court needed to assess the delegate's findings about the appellant's fitness to hold a security agents licence, as well as the process by which these findings were made.

The court found that the delegate had not demonstrably erred in their decision to refuse the licence application. The court determined that there were no cogent reasons to depart from the decision-maker's findings. The delegate's assessment of the appellant's fitness was based on a thorough evaluation of the relevant criteria and evidence, and the court was satisfied that the delegate had exercised their discretion appropriately. Consequently, the appeal was dismissed.

The court's decision affirmed the Commissioner's refusal to grant the appellant a security agents licence, concluding that the delegate's assessment of the appellant's fitness and propriety was sound and supported by the evidence. The court's reasoning underscored the importance of the delegate's role in determining the suitability of licence applicants, and highlighted the stringent criteria that must be met to establish a basis for overturning such a decision.

Orders