Singh v Commissioner for Consumer Affairs - [2010] SADC 146

DISTRICT COURT OF SOUTH AUSTRALIA

(District Court Administrative and Disciplinary Division)

SINGH v COMMISSIONER FOR CONSUMER AFFAIRS

[2010] SADC 146

Judgment of His Honour Judge Costello

2 December 2010

ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS

PROFESSIONS AND TRADES - OTHER PROFESSIONS, TRADES OR CALLINGS - LICENSING OF PARTICULAR TRADES OR CALLINGS

Appeal against a decision of the Commissioner for Consumer Affairs to cancel the Appellant's security agent's licence for failing to comply, without reasonable excuse, with a notice requiring him to attend for a drug test - Appellant, an Indian student with limited English and working very long hours - slept past appointed time for test - whether reasonable excuse in the circumstances - appeal allowed.
Security & Investigation Agents Act 1995 s 230; District Court Act 1991 s 42E, s 42F, referred to.
Taikato v The Queen (1996) 186 CLR 454, 464, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"reasonable excuse"

SINGH v COMMISSIONER FOR CONSUMER AFFAIRS
[2010] SADC 146

This is an appeal pursuant to the provisions of Section 23Q of the Security and Investigations Agents Act 1995 (“the Act”) against a decision of the Commissioner for Consumer Affairs (“the Commissioner”) to cancel the Appellant’s security agent’s licence pursuant to Section 23O of the Act.
The Commissioner determined to cancel the Appellant’s licence based upon his conclusion that the he failed, without reasonable excuse, to comply with a notice given to him under Section 23J of the Act.

The Appeal

The appeal to this Court is (as I have said) brought pursuant to Section 23Q of the Act. The conduct of this appeal is governed by the provisions of Section 42E and 42F of the District Court Act 1991 which provide as follows:
42E   Conduct of appeal
(1)The Court must, on an appeal, examine the decision of the original decision-maker on the evidence or material before the original decision-maker but the Court may, as it thinks fit, allow further evidence or material to be presented to it.
(2)     The Court, on appeal –
(a)     is not bound by the rules of evidence but may inform itself as it thinks fit; and
(b)     must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(3)The Court must, on an appeal, give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reason.
42F    Decision on appeal
(1)     The Court may, on an appeal –
(a)     affirm the decision appealed against;
(b)     rescind the decision and substitute a decision that the Court considers appropriate;
(c)     remit matters to the original decision-maker for consideration or further consideration in accordance with any directions or recommendations of the Court.

Considerations on the Appeal

It is, I would apprehend, tolerably clear that the purpose behind the requirement to attend for testing in the Act is to ensure in so far as is possible that the persons holding these licences are not performing their duties when under the influence of drugs.
Requiring attendance at relatively short notice and without advance warning is essential to the effective operation of the scheme.
However a failure to attend by a licensee does not automatically lead to a cancellation of licence. A licence may only be cancelled if the licensee fails without “reasonable excuse” to comply with the notice.

Reasonable Excuse

“Reasonable excuse” is a protean expression. As the High Court has said[1]:
“The term…has been used in many statutes and is the subject of many reported decisions. But decisions on other statutes provide no guidance because what is a reasonable excuse depends not only on the circumstances of the individual case, but also on the purpose of the provision to which the defence of “reasonable excuse” is an exception.”
[1] Taikato v The Queen (1996) 186 CLR 454,464
Although (as is apparent) these remarks were made in relation to a provision which both created an offence and supplied a defence to that offence, they are nonetheless apposite to a consideration of the expression as it is used in Section 23.
I have already adverted to the purpose of the provision in question, namely to ensure in so far as is possible that a security guard is not carrying out his other duties while under the influence of drugs.
I now turn to the circumstances of the individual case.
The Appellant is a 22 year old Indian man who came to Australia to pursue a study regime in the area of business management.
During 2009 he lived in rented premises with his brother in a house shared by 5 other adults with whom he did not fraternise. On the 31^st August of 2009 he obtained his security agent’s licence and thereafter commenced work, initially in general duties, and later as a crowd controller at licensed venues.
On the 4^th December 2009 he worked a shift at the Ramsgate Hotel but did not arrive home until 4.15am on the morning of 5 December. At midday he worked from noon until 10pm at a music festival before catching a bus to the Archer Hotel in North Adelaide where he commenced work at 10.30pm.
Early next morning at about 12.30am he was issued with a notice requiring him to attend the Adelaide Police Station for a urine test later that day.
In his evidence (given with the assistance of an interpreter) he told me that the police officer issuing the notice told him that he was required to attend for his test at 2.00pm that day and that he was not informed as to the ramifications of failing to attend for the test, namely that his licence could be cancelled.
I pause here to observe that I watched him carefully during his evidence. Whilst he appeared to have a passable grasp of English (which he lapsed into from time to time) he also appeared to struggle, as might be expected when it is not one’s first language, with idioms, some of the vernacular, technical terms and the like.
Senior Constable Gilbert who issued him with the notice told the Court that although he could not recall the specifics of his conversation with Mr Singh, it was his practice (from which he did not deviate) to invite licensees to nominate a test time between 1.00pm and 5.00pm and to “run through” the notice with licensees including that part which referred to the consequences of failing to attend for a test.
Having received the notice, the Appellant folded it and put in his pocket. He did not then read through the notice because the hotel was crowded and he was required to immediately return to his post.
On finishing his shift at 2.15am he waited for his taxi-driver brother to pick him up. As his brother was too busy that night, he made his own way, arriving home at about 4.15am.
He said that he did not read the notice after finishing work because he was too tired to concentrate on much of anything, let alone read and take in the substance of the notice. Importantly, he says that at no time did he properly appreciate that his licence could be cancelled for failing to attend at the police station later that day.
On arriving home he went to bed and did not wake until 8.30pm that night. His brother, who did not get home until 6.00am, did not wake him later that morning. He said that, in the normal course, if his brother did not wake him, others in the house, getting up, and the noise they made, was sufficient to wake him. He had, however, never worked as long as this in the past, either in India or Australia and did not expect to sleep so heavily.
He did not, prior to going to bed, set an alarm, activate his mobile phone alarm or leave any specific message with his brother to wake him. He says that his mobile phone was left on, contrary to Senior Constable Gilbert’s affidavit which records (albeit in a second-hand way) that “police” tried to phone him and that his mobile was switched off. I was not given information as to who made the calls or the means by which the officer or officers ascertained that the phone was switched off, rather than being in use by his brother, as the Appellant suggested might have occurred.
In any event, Mr Singh did not wake up until 8.30pm. Having missed the test, he presented himself at the police station at about 9.00am the following day, where he was told that he could not then take the test. He was told that he would have to take the test on another occasion.
He says that he did not hear anything further until he received a notice, on 8 April 2010, informing him of the Respondent’s intention to cancel his licence and requesting submissions from him, as to why the licence should not be cancelled.
On 21 May 2010 the Commissioner’s delegate wrote to the Appellant informing him that his licence was cancelled. The Appellant received the notice on 26 May 2010. On 31 May 2010 the Appellant who had in fact been issued with 2 licences (which he said contained the same details) attended the Commissioner’s office and surrendered only one of the licences. In evidence, he said that as both licences were “the same” he thought he only needed to surrender the one.
It was put to him that he later tried to use the licence, which he kept, to obtain work as a security guard. In answer to this question (after being warned that he was not required to answer) he told the Court that after his brother returned to India he was “all on his own.” Other people in the house pressured him for money and finally “kicked him out.” On the specific issue, of using the licence to obtain work, he declined to answer.
He told me that he is now living with two married couples in a house. He works sporadically, doing farm labouring work, while continuing business studies. He is earning about $100 per week, of which he spends $50 on rent and the balance on food. If possible, he intends to remain in Australia and continue his studies.
Finally, he told the Court that he had not used any drugs on the night in question or at any other time, and never would use them.

The Commissioner’s Decision

Section 42E requires this Court to examine the Commissioner’s decision on the material before him, but permits it (as I have done) to receive further evidence. The Court must also give the Commissioner’s decision due weight and not depart from it except for cogent reason.
The Commissioner, in his reasons for decision, noted the purpose of the Act, the seriousness of failing to attend for a test and the need to maintain public confidence in the industry and the licensing scheme.
The Commissioner also had regard to a letter from Mr Singh which read as follows [sic]:
“Respected Officers,
This letter is being written by me in order to show my problems for not attending the drug testing procedure.
My name is Gursewark Singh working as security at albion hotel normally. On 5 december 2009, a team approached us for the drug testing procedure at that time I was working at archer hotel. I was asked to come to concerning office for the additional procedure on 6 december. Unfortunately, I was unable to come there because of fatigue and sickness, as I worked for late night. Therefore, I want to consider my problems and want time again to go through the procedure to test to avoid the cancellation of my Licence.
Hopefully, you would understand my problems and give me another date and time for the test.
I hope you will co-oprative with me on this matter.”

Grounds of Appeal

In his Notice of Appeal (which appears to have been done prior to him receiving legal advice) the Appellant referred to some of the background material, to which I have already adverted, and appeared to rely upon his sleep deprivation as the basis for failing to attend for his test.
On the hearing of the appeal, counsel for the Appellant initially eschewed “reasonable excuse” as a ground of appeal and sought to rely solely on “so-called” procedural errors in the letter, dated 21 May 2010, from the Commissioner’s delegate to the Appellant.
The impact of these errors was first, to inform the Appellant that the cancellation of his licence would take effect on 2 June 2010 (12 days later), whereas the provisions of Section 23O(4) of the Act specified that if a licence is to be cancelled the notice must specify a date which is not less than 14 days from the date of the notice. (my underlining)
Secondly, the letter advised the Appellant to surrender his licence by 26 May 2010 whereas, pursuant to Section 23P(1), he had until 11 June 2010 to surrender the licence. Counsel for the Respondent properly conceded that the Commissioner had erred in both cases but submitted that neither error was capable of vitiating the Commissioner’s decision. In particular he submitted that specifying a date, which was two days early, had no effect on the merits of the Commissioner’s decision to cancel, and was inconsequential to the present proceedings.
Furthermore, he said that there was no duty on the Commissioner to advise a licensee as to the timing of a licence surrender and, as such, any error in that regard could not have no effect on a decision to cancel.
Whatever may be the position with regard to advice concerning the timing of his licence surrender, the duty in Section 23O(4) requires that a notice, setting out the Commissioner’s decision to cancel a licence, must specify a date, from which the cancellation is to take effect, which date must be not less than 14 days from the date of the notice.
I am far from persuaded, in legislation which can drastically impact on a person’s livelihood, that anything other than strict compliance with the pre-requisites of a notice, is necessary, in order for it to be effective.
However, given the view that I have reached on the question of reasonable excuse it becomes unnecessary for me to reach a final decision on the legal effect of these “so-called”, procedural errors.
Although (as I have said) the Appellant did not initially seek to rely on reasonable excuse as a ground of appeal, he subsequently did so and I permitted him to pursue this ground on the hearing of the appeal.
In relation to the issue of whether or not the Appellant had a reasonable excuse for failing to comply with the notice, I make the following findings:

the Appellant is a 22 year old Indian man who arrived in Australia, on 23 April 2009, some 7½ months prior to the events of the night in question;
during his stay in Australia, the Appellant resided with his brother in a house with other adults;
in August 2009, he gained a licence to do crowd control work;
some time later, he received an authorisation to do crowd control work in licensed premises;
in or about December 2009, the Appellant had a passable (but nevertheless limited) command of the English language;
prior to receiving the notice, the Appellant had worked shifts totalling 14 hours in addition to working until the early hours of the morning on the day before;
at the time of receiving his notice, the Appellant was extremely tired;
at the time of receiving his notice, he merely pocketed it, without reading it, and went straight back to work at his post;
he was probably informed of the consequences of failing to attend by Officer Gilbert but by reason of his tiredness, and limited understanding of the English language, did not fully or properly understand the ramifications of missing his test;
after finishing his shift (now totalling 16 hours), he did not get home until some 2 hours later, at around 4.30am. Sometime thereafter he went to bed and slept until 8.30pm;
his brother, who did not himself get home until around 6.00am, did not wake him;
although police did try to call him they were unable to contact him. Whether this was due to his mobile phone being switched off or in use at that time is unclear;
he had not previously ever worked for such a lengthy period either in India or Australia, and nor had he previously been asked to take a urine test for the purposes of drug analysis;
he attended at the police station at 9.00am the following morning, where he was informed that he could not take the test but would have to make another appointment;
if he had consumed any drugs during his shift at the Archer, it was still possible for the presence of such a drug to be detectable when he attended the police station at 9.00am;[2]
in his explanation for his failure to attend for his drug test I found him to be entirely genuine.
his decision to surrender only one licence was due to lack of money, and pressure on him from others for money, after his brother had returned to India.
[2] Exhibit D3 - Report of Peter Felgate

Reasonable

Based on these findings and accepting that the Appellant is quite genuine is his excuse a reasonable one?
I accept the submission by the Commissioner that the cases, where sleeping through an appointment could found a basis for “reasonable excuse”, would be rare.
However, in this case, the Appellant was a young man, a recent arrival to this country, of limited experience and training, confronting, in the words of counsel for the Appellant, a “cultural chasm.”
He has a limited command of English. He had limited, prior involvement in working in licensed premises and had never been asked to take a test like this before. I am satisfied that the factors of youth, inexperience, extreme tiredness and limited language all combined to cause him to fail to properly understand the true consequences of missing the test and to fail to take the steps necessary to avoid sleeping-in beyond his appointment time.
I am therefore satisfied, that the Appellant had a reasonable excuse for failing to comply with the notice. In the exercise of my discretion, I conclude that there is cogent reason to depart from the Commissioner’s decision. Accordingly I allow the appeal and rescind the decision of the Commissioner cancelling the Appellant’s licence. I order that the Commissioner re-issue, to the Appellant, a security agent’s licence restricted to guard work as an employee, crowd control work as an employee and dog handling as an employee.
I will hear the parties as to any other orders which I should make.