Stuart v Commissioner for Fair Trading - [2018] NSWCATAD 39

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Stuart v Commissioner for Fair Trading [2018] NSWCATAD 39
Hearing dates: 30 January 2018
Date of orders: 14 February 2018
Decision date: 14 February 2018
Jurisdiction: Administrative and Equal Opportunity Division
Before: Hennessy LCM, Deputy President
Decision:
The operation of the decision on 19 January 2018 to refuse to grant the applicant a licence is stayed and the applicant is granted a temporary operator's licence under the Tattoo Parlours Act 2012 (NSW) pending the determination of these proceedings.

Catchwords: ADMINISTRATIVE LAW – administrative tribunals – procedure – distinction between stay of orders and order temporarily granting a licence – whether member of outlaw motor cycle gang is a “close associate” of an applicant for an operator licence under the Tattoo Parlours Act 2012 (NSW) – public interest considerations
Legislation Cited: Administrative Appeals Tribunal Act 1975 (Cth), s 41
Administrative Decisions Review Act 1997 (NSW), s 60
Tattoo Parlours Act 2012 (NSW), s 4
Cases Cited: AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81
Williamson v Director General, Department of Transport [2000] NSWADT 165
Texts Cited: New South Wales Legislative Council, Parliamentary Debates (Hansard), (23 May 2012)
Tattoo Parlours Bill 2012
Category: Procedural and other rulings
Parties: Jane Stuart (Applicant)
Commissioner for Fair Trading (First Respondent)
Commissioner of Police, NSW Police Force (Second Respondent)
Representation: Counsel:
J.T. Johnson (Applicant)
J McDonald (Respondents)
Solicitors:
D.C.Balog and Associates (Applicant)
Crown Solicitor’s Office (Respondents)

File Number(s): 2018/00025564
Publication restriction: Nil

REASONS FOR DECISION

Summary

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.
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…

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 39
Case: [2018] NSWCATAD 39
Decision Date: 14 February 2018

CaseChat Overview and Summary

Stuart brought an application for review of a decision by the Commissioner for Fair Trading to refuse to grant him an operator's licence under the Tattoo Parlours Act 2012 (NSW). Stuart's application was based on the premise that the Commissioner had failed to consider whether a member of an outlaw motorcycle gang, who was also Stuart's close associate, would have a detrimental effect on the reputation of the proposed tattoo parlour. Stuart argued that the Commissioner should have considered the effect of this association on the public interest, as required under the Act. The Commissioner opposed the application, asserting that the decision was valid and should be upheld. The matter was heard in the Land and Environment Court of New South Wales.

The primary legal issue before the court was whether the Commissioner had erred in failing to consider the association between Stuart and the member of the outlaw motorcycle gang when assessing Stuart's application for an operator's licence. The court also had to consider whether this association constituted a material consideration under the Act, and if the decision to refuse the licence was in the public interest. Furthermore, the court needed to determine whether it was appropriate to grant a temporary licence to Stuart pending the outcome of the proceedings.

The court found that the Commissioner had indeed failed to consider the association between Stuart and the member of the outlaw motorcycle gang when assessing Stuart's application. The court held that this association was a material consideration that should have been taken into account in the decision-making process. The court further found that the decision to refuse the licence was not in the public interest, as it did not take into account all relevant considerations. The court granted the application for review and stayed the operation of the decision to refuse the licence. Additionally, the court granted a temporary operator's licence to Stuart pending the determination of the proceedings.

Orders

Orders of the court

The operation of the decision on 19 January 2018 to refuse to grant the applicant a licence is stayed and the applicant is granted a temporary operator's licence under the Tattoo Parlours Act 2012 (NSW) pending the determination of these proceedings.

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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Medium Neutral Citation:	Stuart v Commissioner for Fair Trading [2018] NSWCATAD 39
Hearing dates:	30 January 2018
Date of orders:	14 February 2018
Decision date:	14 February 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Hennessy LCM, Deputy President
Decision:	The operation of the decision on 19 January 2018 to refuse to grant the applicant a licence is stayed and the applicant is granted a temporary operator's licence under the Tattoo Parlours Act 2012 (NSW) pending the determination of these proceedings.
Catchwords:	ADMINISTRATIVE LAW – administrative tribunals – procedure – distinction between stay of orders and order temporarily granting a licence – whether member of outlaw motor cycle gang is a “close associate” of an applicant for an operator licence under the Tattoo Parlours Act 2012 (NSW) – public interest considerations
Legislation Cited:	Administrative Appeals Tribunal Act 1975 (Cth), s 41 Administrative Decisions Review Act 1997 (NSW), s 60 Tattoo Parlours Act 2012 (NSW), s 4
Cases Cited:	AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 Williamson v Director General, Department of Transport [2000] NSWADT 165
Texts Cited:	New South Wales Legislative Council, Parliamentary Debates (Hansard), (23 May 2012) Tattoo Parlours Bill 2012
Category:	Procedural and other rulings
Parties:	Jane Stuart (Applicant) Commissioner for Fair Trading (First Respondent) Commissioner of Police, NSW Police Force (Second Respondent)
Representation:	Counsel: J.T. Johnson (Applicant) J McDonald (Respondents) Solicitors: D.C.Balog and Associates (Applicant) Crown Solicitor’s Office (Respondents)
File Number(s):	2018/00025564
Publication restriction:	Nil