Stuart v Commissioner for Fair Trading

[2018] NSWCATAD 90

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Stuart v Commissioner for Fair Trading [2018] NSWCATAD 90

Hearing dates:

Pursuant to s 50 of the Civil and Administrative Tribunal Act a hearing was dispensed with and the application determined on submissions filed by applicant and Platinum Ink Australia Pty Ltd on 13 April 2018 and by the respondents on 17 April 2018

Date of orders:

20 April 2018

Decision date:

20 April 2018

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

R Titterton, Principal Member

Decision:

1 The application to set aside the summons issued to Platinum Ink Australia Pty Ltd issued 16 March 2018 is refused.

 

2 The application to set aside the summons issued to the applicant issued 26 March 2018 is refused.

 3 The documents sought under each summons are to be produced to the Registry, Level 10, John Maddison Tower, at 9.30am on 2 May 2018.

Catchwords:

PRACTICE AND PROCUDURE – application to set aside summonses

Legislation Cited:

Administrative Decisions Review Act 1997
Tattoo Parlours Act 2012

Cases Cited:

Attorney-General for New South Wales v Chidgey [2008] NSWCCA 65
Azar Building Construction Services Pty Ltd v Transport Infrastructure Corporation [2010] NSWLEC 110
Becwell Legal Services Pty Ltd v McMaster [2011] FCA 1501
CPJ v The University of Newcastle [2017] NSWCATAD 350
ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307
Portal Software v Bodsworth [2005] NSWSC 1115
R v Saleam [1999] NSWCCA 86
Stuart v Commissioner for Fair Trading [2018] NSWCATAD 39
The Commissioner for Railways v Small (1938) 38 SR(NSW) 564
Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd [2011] NSWLEC 25

Texts Cited:

NCAT Procedural Direction 2 - Summonses

Category:

Procedural and other rulings

Parties:

Jane Stuart (Applicant)
Commissioner for Fair Trading (First Respondent)
Commissioner of Police (Second Respondent)

  Platinum Ink Australia Pty Ltd (respondent to the summons issued by the second respondent and applicant on the application to set aside that summons)

Representation:

Counsel:
J T Johnson (Applicant, Platinum Ink Australia Pty Ltd)
H El-Hage (Respondents)

  Solicitors:
D C Balog & Associates (Applicant, Platinum Ink Australia Pty Ltd)
Crown Solicitor’s Office (Respondents)

File Number(s):

2018/00025564

REASONS FOR DECISION

Introduction

1. At the request of the Commissioner of Police, the Registry has issued two summonses, one to Ms Stuart, the other to Platinum Ink Australia Pty Ltd (Platinum Ink). Ms Stuart and Platinum Ink have each asked the Tribunal to set aside those summonses.

2. For the following reasons, I have decided to refuse those applications. Ms Stuart and Platinum Ink are to produce the documents the subject of the summonses to the Registry on 2 April 2018.

Background

3. By application dated 24 January 2018, Ms Stuart seeks a review of a decision made by the first respondent refusing to grant her a licence to operate a tattoo parlour. The decision was made after the Commissioner of Police inquired into the application and made a determination and report, pursuant to s 19(1) of the Tattoo Parlours Act 2012 (NSW) that it would be contrary to the public interest for the licence to be granted to Ms Stuart. This was because a close associate of Ms Stuart, Mr Peter Sidirourgos, was not a fit and proper person. The Commissioner of Police concluded that Mr Sidirourgos was a member of an Outlaw Motor Cycle Gang (OMCG) and at the time of the decision, that he was the sole shareholder of Platinum Ink. Mr Sidirourgos’ shares in Platinum Ink were subsequently transferred to Ms Stuart.

4. At the same time Ms Stuart filed her application for review, she also sought a stay of the decision of the Commissioner of Fair Trading. The Tribunal allowed the stay and granted Ms Stuart a temporary operator's licence pending the determination of these proceedings: Stuart v Commissioner for Fair Trading [2018] NSWCATAD 39 (Stay Decision). A convenient summary of the background to the underlying application appears at pars [1] to [3] of that decision:

1 In 2008 Ms Stuart started working as an apprentice in a Sydney tattoo parlour owned by Hells Angels motor cycle club member, Mr Sidirourgos and his then wife Jo-Ann Pomeroy. When Parliament passed laws requiring a person operating a tattoo parlour to be licenced, Mr Sidirourgos realised that he would not be given a licence because of his association with an outlaw motor cycle club. According to Ms Stuart, Mr Sidirourgos and Ms Pomeroy moved to Queensland in 2012 and gave her their business, Platinum Ink Pty Limited. In February 2013, Ms Stuart became the sole director of that company and operated that tattoo parlour at the same address in Sydney. Ms Stuart told the Tribunal that she thought that the shares in Platinum Ink Pty Limited had also been transferred to her in February 2013. In fact, Mr Sidirourgos continued to be recorded on the Australian Securities and Investments Commission (ASIC) register as being the only shareholder.

2 Following the introduction of the Tattoo Parlours Act 2012 (NSW), Ms Stuart applied for an operator licence in June 2013. The legislation allowed her to continue operating until notified that the application had been refused or withdrawn. The application was referred to the Commissioner of Police for assessment. On the basis of certain material, including criminal intelligence information, the Commissioner of Police determined that Mr Sidirourgos was a “close associate” of Ms Stuart, that he was not a fit and proper person and that it would be contrary to the public interest to give Ms Stuart a licence. Because of this adverse security determination, the Commissioner for Fair Trading was obliged to refuse Ms Stuart’s application for a licence and did so on 19 January 2018. Ms Stuart has applied to the Tribunal for a review of that decision.

3 After Ms Stuart applied to the Tribunal, she saw that Mr Sidirourgos was still recorded as a shareholder of Platinum Ink Pty Limited on the ASIC register. Ms Stuart believed that was a mistake and asked her husband to contact Mr Sidirourgos as he is “friends” with him on Facebook. Ms Stuart’s evidence was that Mr Sidirourgos told her husband that he would talk to his legal team and get it sorted out. There was evidence that, on 24 January 2018, the shares were transferred to Ms Stuart retrospectively, that is with effect from 21 February 2013. Ms Stuart says that apart from asking others to contact Mr Sidirourgos to transfer the shares, she has not been in contact with him since 2013.

Summonses issued

5. On 16 March 2018, on the application of the Commissioner of Police, the Registry issued a summons to Platinum Ink. In its statement of reasons for requesting the summons to be issued, the Commissioner of Police stated that the material produced would assist the Tribunal to determine an issue in dispute, namely whether Mr Sidirourgos was a close associate of Ms Stuart.

6. The documents to be produced identified in the Schedule to the summons are:

1. One copy of this Summons.

2. One copy of all documents (in print or electronic format):

(a) evidencing or recording the transfer of management, control and/or ownership of shares in Platinum Ink Australia Pty Ltd (ACN 129 020 980) to Jane Stuart.

(b) evidencing or recording correspondence or communications concerning the transfer of management, control and/or ownership of shares in Platinum Ink Australia Pty Ltd (ACN 129 020 980) to Jane Stuart, from 1 December 2012 to 21 February 2013

(c) evidencing or recording correspondence or communications concerning the cessation of the business relationship between Platinum Ink Australia Pty Ltd (ACN 129 020 980) and MKP Associates Pty Ltd evidencing or recording correspondence or communications concerning the commencement of the business relationship between Platinum Ink Australia Pty Ltd (ACN 129 020 980) and CGH Integrated Wealth Pty Ltd.

7. On 26 March 2018, on the application of the Commissioner of Police, the Registry issued a summons to Ms Stuart. Again, the Commissioner of Police stated that the material produced would assist the Tribunal to determine an issue in dispute, namely whether Mr Sidirourgos was a close associate of Ms Stuart.

8. The documents to be produced identified in the Schedule to the summons are:

1. One copy of this Summons.

2. One copy of all documents (in print or electronic format) prepared by Jane Stuart, either in her own capacity or on behalf of Platinum Ink Australia Pty Ltd, evidencing or recording correspondence and communications from, to or with Peter Sidirourgos, including but not limited to mail, email, and text messages, for the period 21 February 2013 to date

3. One copy of all documents (in print or electronic format) evidencing or recording the telephone records for any mobile phone number belonging to Jane Stuart, from 21 February 2013 to date, that evidence or record any telephone calls made to or received from Peter Sidirourgos, and the telephone records for any telephone number belonging to Platinum Ink Australia Pty Ltd, from 21 February, 2013 to date, that evidence or record any telephone calls made to or received from Peter Sidirourgos.

Objections to summonses

9. Both Ms Stuart and Platinum Ink object to the production of:

1. the documents identified in par [2] of the Schedule to the Platinum Ink summons; and

2. the documents identified in pars [2] and [3] of the Schedule to the summons issued to Ms Stuart.

10. In relation to summons issued to Platinum Ink, the applicant and Platinum Ink submit, in summary, that:

1. it has been conceded that Mr Sidirourgos was someone who, if found to be a "close associate" of Ms Stuart in terms of the Tattoo Parlours Act 2012, would be an undesirable person;

2. the respondents have accepted that the shares held by Mr Sidirourgos had in fact been transferred to Ms Stuart and therefore there is no issue that Ms Stuart is the sole shareholder of Platinum Ink;

3. the primary reference to Mr Sidirourgos being a "close associate" of Ms Stuart appears to be his recorded shareholding in Platinum Ink. Mr Sidirourgos has now ceased to be a shareholder and the respondents have not identified any other proper basis under which it could be said that Mr Sidirourgos is still otherwise a "close associate" of Ms Stuart.

11. Ms Stuart and Platinum Ink also submit that par [2] is oppressive in various respects.

12. The respondents disagree. They submit, in summary, that:

1. while the respondents accept that if Mr Sidirourgos is not a shareholder in Platinum Ink, then, on the information presently available, he would not be a "close associate" within the meaning of s 4(4)(a) of the Tattoo Parlours Act 2012, that is not the end of the matter. The Tattoo Parlours Act 2012 requires an assessment of whether an applicant for a licence is fit and proper and whether it is in the public interest to grant the licence sought. Ultimately, the outcome of that assessment will depend on the material before the Tribunal at the time of the final hearing: Smith v Commissioner of Police [2014] NSWACTAD 184 at [16];

2. the extent of any association or links between a tattoo parlour and an OMCG (or a member of members of an OMCG) is relevant to the question of the operator's fitness and propriety to be granted a licence and the public interest;

3. the assertions of oppression are made without supporting evidence.

13. In relation to the summons issued to Ms Stuart, Ms Stuart and Platinum Ink submit, in summary, that:

1. in relation to par [2], this is an attempt to impugn answers given in cross-examination on 30 January 2018, and is an attempt to access documents going to "credit". Further, it is submitted that the request amounts to “fishing”;

2. in relation to par [3], there is no identification of any telephone number to which calls could have been made or received from Mr Sidirourgos to which attention is required to be given in connection with the period from 21 February 2013 to date and thus also constitutes fishing.

14. In response, the respondents submit, in relation to the summons going to credit, that:

1. Ms Stuart appeared to be equivocal under cross-examination;

2. whether Ms Stuart has had contact with Mr Sidirourgos and the extent of any such contact (and its nature) is relevant to the determination of the application for review;

3. even if Ms Stuart gave unequivocal evidence during the interlocutory hearing that she had no contact with Mr Sidirourgos, the respondents are entitled to test that evidence, not merely to test Ms Stuart's credibility (which is a relevant issue in any event given that the Tribunal is considering her fitness and propriety), but to test whether in fact there has been communication and the nature of such communication;

4. there is no evidence of any oppression;

5. if it is indeed the case that Ms Stuart has not had any contact or communications with Mr Sidirourgos then presumably she would not have any documents to produce.

Relevant principles

15. The Tribunal’s Procedural Direction 2, Summonses, sets out the procedure to be followed if a person or party objects to a summons. Clause 32 provides that if the person named in the summons objects to complying with the summons or if another person affected by the summons objects to the summons being complied with, they should try to resolve the objection with the party who applied for the summons to be issued before the time for compliance.

16. Clause 33 notes that common objections include:

• the summons is oppressive, for example because it is too wide in scope and imposes too great a burden on the person named in the summons;

• the summons is too vague so that the person named in the summons cannot clearly identify what documents or other things are required to be produced;

• the evidence, documents or other things are privileged from disclosure, for example because they are confidential communications between a lawyer and a client;

• the evidence, documents or other things identified in the summons are not relevant to any issue in dispute in the proceedings.

17. The Procedural Direction continues:

33. If the objector is unable to resolve the matter informally, the objector should:

(a) before the time for compliance, inform the registrar and the party who applied for the summons of the basis for the objection. This should be done in writing;

(b) attend the Tribunal on the date for compliance and be prepared to explain the basis for objection.

34. Objections that cannot be resolved by discussion and agreement will be referred to a Member for decision.

18. Following that process, the applications to set aside the summonses to Platinum Ink and Ms Stuart have been referred to the Tribunal as presently constituted for determination.

19. The applications are applications to set aside each of those summonses. The principles to be applied in considering such applications were recently stated in CPJ v The University of Newcastle [2017] NSWCATAD 350 at [9] to [12]. The principles include the following:

1. the Tribunal may draw on common law principles when determining whether to set aside a summons. At common law, a summons must only be issued for a legitimate forensic purpose. The onus is on the party attempting to procure the material to demonstrate a legitimate forensic purpose by reference to the issues as disclosed in the pleadings: Becwell Legal Services Pty Ltd v McMaster [2011] FCA 1501 at [27];

2. it is an abuse of process to issue a summons in relation to documents which have no “apparent relevance” to the issues in dispute: Portal Software v Bodsworth [2005] NSWSC 1115 at [22] and [23]; Becwell at [26];

3. it is also impermissible for a party to use a summons for “fishing”. “Fishing” is “where a party attempts by way of a subpoena to find out facts, matters and circumstances which might enable the party to advance a case of which there is no present knowledge”.

20. In Azar Building Construction Services Pty Ltd v Transport Infrastructure Corporation [2010] NSWLEC 110 Craig J described some of the circumstances in which a subpoena will be liable to be set aside because no legitimate purpose can be established. His Honour stated:

20 ...Without intending to be exhaustive, it is apparent that a subpoena or notice to produce will be liable to be set aside where the party seeking production of documents cannot establish:

(i) that it is "on the cards" that the documents will materially assist on an identified issue: Alister v The Queen (1984) 154 CLR 404 at 414; R v Saleam [1999] NSWCCA 86 at [11]; Attorney-General for NSW v Chidgey [2008] NSW CCA 65; 182 A Crim R 536 at [58] - [69];

(ii) that the material sought could reasonably be expected to throw light on some of the issues in the principal proceedings: Trade Practices Commission v Arnotts Limited (No 2) (1989) 21 FCR 306; 88 ALR 90 at 103; Cosco Holdings Pty Ltd v Federal Commissioner of Taxation [1997] FCA 1504; (1997) 37 ATR 432;

(iii) that there is a reasonable basis for supposing that the material called for will likely add to the relevant evidence in the case: A v Z (2007) 212 FLR 255 at [4];

(iv) that it is likely the documents will materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely the document will do so: Air Canada v Secretary of State for Trade (No 2) [1983] 2 AC 394; [1983] 2 WLR 494; ICAP Australia Pty Ltd v Moebes [2009] NSWSC 306; ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307.

21. The respondents accept that they bear the onus of demonstrating that the summonses have been issued for a legitimate forensic purpose, and to establish that it is “on the cards” that the documents will materially assist their case: Attorney-General for New South Wales v Chidgey [2008] NSWCCA 65; R v Saleam [1999] NSWCCA 86 at [11].

Consideration

22. In ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 at [22] Tobias JA (with whom Basten JA and Handley AJA agreed) said that the tests for establishing a legitimate forensic purpose, however stated, require identification of an issue or issues in the proceedings which then becomes the measure against which the forensic purpose of the documents can be determined.

23. The principal issue for determination at the final hearing is whether or not Mr Sidourgos is a “close associate” of Ms Stuart. In the Stay Application, the Tribunal found at [24] that while there was some evidence about the appointment of accountants and changes to registered offices, even if Mr Sidirourgos had some involvement in those changes, it would not make him a “close associate” of Ms Stuart. Nor was there any evidence that, by virtue of such a power, Mr Sidirourgos could exercise “significant influence” over the management or operation of the business. The Tribunal concluded at [25] that:

I am not satisfied, on the evidence currently before me, that Mr Sidirourgos is a “close associate” of Ms Stuart. Nor is there sufficient evidence of Mr Sidirourgos influencing or being involved in the operation of the business to justify denying her a licence while NCAT determines her application.

24. (Emphasis added.)

25. Ms Stuart and Platinum Ink submit that “the primary reference” to Mr Sidirourgos being a "close associate" appears to be his recorded shareholding in Platinum Ink, an issue which “has now ceased to be applicable”. The respondents accept that, if Mr Sidirourgos is not a shareholder in Platinum Ink, then, on the information presently available, he would not be a "close associate" within the meaning of s 4(4)(a) of the Tattoo Parlours Act 2012. However, they submit that the Tattoo Parlours Act 2012 requires an assessment of whether an applicant for a licence is fit and proper and whether it is in the public interest to grant the licence sought. Ultimately, the outcome of that assessment will depend on the material before the Tribunal: Smith v Commissioner of Police [2014] NSWACTAD 184 at [16]. At the final hearing, in accordance with s 63 of the Administrative Decisions Review Act 1997, the Tribunal is required to make the correct and preferable decision with respect to the application for review, having regard to the material then before it.

24. I agree. While there is an interlocutory finding in the Stay Decision, that should not be assumed to be the final position of the Tribunal. I accept that respondents are primarily seeking documents which record or evidence any communications with Mr Sidirourgos, an established member of an OMCG and previous operator of the tattoo parlour, and that Ms Stuart's own evidence is that Mr Sidirourgos is in contact with her husband (even if via Facebook as claimed in the written submissions). I accept that any continued association between Mr Sidirourgos and Ms Stuart (or the tattoo parlour), and the extent and nature of any such association, is of relevance to the determination of these proceedings.

25. I turn now to the detail of paragraphs of the schedule to the summons to Platinum Ink sought to be set aside. The documents sought in par 2(c) and 2(d) respectively are documents concerning the cessation of the business relationship between Platinum Ink and its former accountants, and the commencement of the business relationship between Platinum Ink and its current accountants. I note that the Stay Decision refers to these entities. At [18] the Tribunal accepts, for the purposes of the Stay application that while Mr Sidirourgos intended to transfer his shares into Ms Stuart’s name in February 2013, through an inadvertent oversight on the part of the accountants that did not happen. Given those matters, I accept that the documents to be produced by the former and current accountants could be documents which have “apparent relevance” to the issues in dispute.

26. Finally, I note that Ms Stuart and Platinum Ink submit that:

…[I]n respect of each of the Summonses what is required is "all documents (in print and electronic format), predicated also on the note appearing at the end of each Summons which it is submitted is a form the subject of severe criticism by Sir Frederick Jordan in Small's case.

29. The criticism is of the words appearing in the schedules:

“all documents (in print or electronic format):

…

Note in this schedule, the word "documents" includes, but is not limited to, financial records or statements, electronically lodged documents, letters, correspondence, electronic mails, facsimile transmissions, file notes, memoranda, accounting records, statements, dealings, authorities, consents and anything on which sounds, images or writings may be reproduced with or without the aid of anything else in either hard copy, electronic or other format”

30. The reference to Small’s case is a reference to the comments of Jordan CJ in The Commissioner for Railways v Small (1938) 38 SR(NSW) 564 at 572-573. The Chief Justice was considering the words:

all deeds, instruments, books, papers, maps, plans, specifications, writings, letters, vouchers, receipts, documents and memoranda, and all drafts and copies thereof in his possession or power relating to, or in any wise concerning, or which can or may afford any evidence or information respecting the matters in question in the said cause and particularly

preceding a space being left for the mention of particular documents.

31. The Chief Justice was critical of the words appearing in italics in the above passage, describing them as “improper”. He said that no further subpoenas should be allowed to be issued which included those words. However, the Chief Justice went on to say:

Nothing turns, however, on the presence of these words in the present case, because, in accordance with the usual practice, no one paid any attention to them. It is the words which follow them that matter, and make it necessary to consider the legitimate purposes of a subpoena of this type.

32. It is not clear precisely what submission Ms Stuart and Platinum Ink are putting, other than to criticise the form of words used in the schedules to the two summonses. If their submission is that the summonses should be set aside for this reason, I reject that submission as being unfounded. In my view, as with the matter before the Chief Justice, nothing turns on the presence of those words in the present case.

33. As to the summons issued to Ms Stuart, I reject the criticism that the seeking of telephone records “for any telephone number” belonging to Ms Stuart or Platinum Ink in the period 21 February 2013 to date is oppressive. I consider that Ms Stuart’s mobile phone number would be well-known to her, as would the phone numbers belonging to Platinum Ink, the business of which she has claimed to be the sole owner and manager since February 2013.

34. I decline to set aside the summons issued to Ms Stuart.

Orders and Directions

35. For the above reasons I order that:

1. The application to set aside the summons issued to Platinum Ink Australia Pty Ltd issued 16 March 2018 is refused.

2. The application to set aside the summons issued to Ms Stuart issued 26 March 2018 is refused.

3. The documents sought under each summons are to be produced to the Registry, Level 10, John Maddison Tower, at 9.30am on 2 May 2018.

********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 20 April 2018