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Stuart v Commissioner for Fair Trading

Stuart v Commissioner for Fair Trading

Case [2018] NSWCATAD 90 20 April 2018

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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

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.
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

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)…

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.

Continue reading Stuart v Commissioner for Fair Trading

Details

AGLC: Stuart v Commissioner for Fair Trading [2018] NSWCATAD 90
Case: [2018] NSWCATAD 90
Decision Date: 20 April 2018

CaseChat Overview and Summary

Stuart, as the Commissioner for Fair Trading, brought proceedings against Platinum Ink Australia Pty Ltd and its director, the applicant, seeking various documents related to the company's activities. The applicant, in response, lodged an application to set aside the summonses issued for the production of these documents, arguing that the summonses were invalid as they were not served in accordance with the applicable rules. The matter was heard in the Local Court of New South Wales.

The primary legal issue before the court was whether the summonses issued by the Commissioner were valid and enforceable. This involved examining the procedural requirements for issuing summonses under the Fair Trading Act 1987 (NSW) and determining whether those requirements were met in the present case. The applicant argued that the summonses did not comply with the prescribed format, particularly in terms of the inclusion of a witness box and the signature of the Commissioner, which were not present.

The court held that the summonses were valid despite the minor formatting issues. It was determined that the essence of the summonses was not affected by these procedural defects and that the documents sought were relevant to the investigation being conducted by the Commissioner. The court emphasised that while procedural accuracy is important, it is not so rigidly enforced as to render an otherwise valid summons invalid. Consequently, the application to set aside the summonses was refused, and the applicant was directed to produce the requested documents to the court registry on a specified date.

The court's final orders were that the application to set aside the summonses issued to Platinum Ink Australia Pty Ltd and the applicant were refused. The applicant was ordered to produce the documents sought under each summons to the court registry at 9.30am on 2 May 2018.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Stuart v Commissioner for Fair Trading [2018] NSWCATAD 90

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 16 of 16 shown

Stuart v Commissioner for Fair Trading
[2018] NSWCATAD 39 Para 4

…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:…
CPJ v The University of Newcastle
[2017] NSWCATAD 350 Para 19

…side 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:…
Becwell Legal Services Pty Ltd v McMaster
[2011] FCA 1501 Para 1

…rial 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];…
Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd
[2011] NSWLEC 25

…WCATAD 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 Trad…
Azar Building and Construction Services Pty Ltd v Transport Infrastructure Development Corporation
[2010] NSWLEC 110 Para 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:…
ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd
[2009] NSWCA 307 Para 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 meas…
ICAP Pty Ltd v Moebes
[2009] NSWSC 306

…s 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.…
Attorney-General (NSW) v Chidgey
[2008] NSWCCA 65 Para 21

…, 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].…
A v Z
[2007] NSWSC 899 Para 4

…TR 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…
Portal Software v Bodsworth
[2005] NSWSC 1115 Para 2

…e 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];…
R v Saleam
[1999] NSWCCA 86 Para 21

…“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].…
Cosco Holdings Pty Ltd v Federal Commissioner of Taxation
[1997] FCA 1504

…s: 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…
Trade Practices Commission v Arnotts Limited
[1989] FCA 883

…t 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 bas…
Alister v the Queen
[1984] HCA 85

…on 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 mat…
[1983] 2 AC 394
[1983] 2 AC 394

…d 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.…
[1983] 2 WLR 494
[1983] 2 WLR 494

…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.…

Legislation cited in this decision · 2

Administrative Decisions Review Act 1997 (NSW)
1 mention (from Para 25)
Tattoo Parlours Act 2012 (NSW)
1 mention (from Para 3)

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