Trajkovski v Commissioner for Fair Trading

[2014] NSWCATAD 14

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Trajkovski v Commissioner for Fair Trading [2014] NSWCATAD 14

Hearing dates:

21 January 2014

Decision date:

21 January 2014

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Magistrate N Hennessy, Deputy President

Decision:

The decision to cancel the applicant's tattooist licence is stayed on the following conditions:

1. That the applicant only perform body art tattooing procedures:

(a) on male clients of Wicked Ink Tattoo and Body Piercing Studio at 394 High Street Penrith; and

(b) in the presence of a third person observing the procedure agreed to by the client; and

(c) in a bay that is monitored by CCTV and which records all activity in the bay.

2. That the CCTV recording referred to in Order 1 not be overwritten.

3. That the CCTV recording referred to in Order 1 be preserved and produced to the Director, Security Licensing and Enforcement Directorate on demand.

4. The following orders are made:

(a) The respondent is to be re-described as the first respondent;

(b) The first respondent is to be re-named as the "Commissioner for Fair Trading";

(c) The Commissioner of Police is to be added as a party to the proceedings as second respondent.

5. Matter stood over for further directions on 30 January 2015 at 10 am.

6. Parties have liberty to apply to restore the matter to the list before that date.

Catchwords:

MERITS REVIEW - application to stay decision to cancel tattooist licence - applicant charged with sexual assault - whether public interest can be protected by imposition of conditions on licence

Legislation Cited:

Administrative Decisions Review Act 1997
Tattoo Parlours Act 2012

Cases Cited:

Bahloul v Roads and Maritime Services [2013] NSWADT 200
Department of Transport and Infrastructure v Murray [2011] NSWADTAP 16
Farquharson v Director General, Department of Transport [1999] NSWADT 53
Rowe v Commissioner of Police [2010] NSWADT 307

Category:

Interlocutory applications

Parties:

Saso Trajkovski (Applicant)
Commissioner for Fair Trading (First Respondent)
Commissioner of Police, NSW Police Force (Second Respondent)

Representation:

Counsel -
P Boulten SC (Applicant)
T Lynch SC (Second Respondent)
B Wrench, Murphy's Lawyers (Applicant)
C Fesel, Crown Solicitor's Office (First Respondent)
A Paul, Crown Solicitor's Office (Second Respondent)

File Number(s):

1410020

reasons for decision

EX TEMPORE DECISION

1. This is an application for a stay of a decision to cancel Mr Trajkovski's tattooist's licence. The licensing scheme is under the Tattoo Parlours Act 2012 and the Civil and Administrative Tribunal has jurisdiction to review that cancellation under s 27 of the Act.

1. The power to grant a stay is under the Administrative Decisions Review Act 1997 s 60. That is the same provision that the Administrative Decisions Tribunal has been applying in relation to stay applications for reviewable decisions and I will not repeat it, but it has two steps.

1. In s 60 the Tribunal must firstly be satisfied that the order, staying or otherwise affecting the operation for decision under review, is appropriate to "secure the effectiveness of the determination of the application". That is the threshold question. If that question is answered in the affirmative the Tribunal would then go on to look at the three matters listed in subs (3), that is the interests of any person affected by the determination, any submissions made by the administrator and the public interest.

1. The decision in this case, to cancel Mr Trajkovski's tattoo licence, was made by a delegate of the Commissioner for Fair Trading on 20 December 2013. The critical part of the decision is in para 1(b) of that decision and it is I quote:

On 20 December 2013, a delegate of the Commissioner of Police reported to the Director-General under section 19(2) of the [Tattoo Parlours] Act that:

i) the delegate had conducted an investigation in relation to the licensee, on the delegate's own initiative; and

ii) the delegate had determined that it would be contrary to the public interest for the licensee to continue to hold his licence for the reason that, on 18 December 2013, proceedings for an offence against section 61I of the Crimes Act 1900 (sexual assault) were commenced against him in relation to events which allegedly occurred at the tattoo parlour at which he is employed.

1. The events with which he has been charged allegedly occurred at the tattoo parlour at which he is employed.

1. It is notable, reading that paragraph, that the basis for the decision was the public interest and not whether Mr Trajkovski is a fit and proper person to hold the licence. The reason for that was explained by Mr Lynch representing the Commissioner for Police in that the matter is a charge at this stage. No findings have been made about Mr Trajkovski or whether or not he is a fit and proper person to work in the industry.

1. The evidence from the applicant was an affidavit from Mr Trajkovski, some financial information about a home loan, a statement from Mr Robert Fielding, the building manager/owner of Wicked Ink, Penrith, which is the business which employs Mr Trajkovski, a statement from Ms Kellie Fielding, the owner/operator of the business, photographs which were tendered separately as exhibit D, three photographs of the tattoo parlour showing the workspace that Mr Trajkovski uses and a copy of a customer notice. The customer notice was not raised.

1. There were also character references tendered in evidence by the applicant. Ten character references including one from Ms Fielding, one from Mr Fielding and the remainder if I am not mistaken from friends and clients.

1. From the police's point of view there were three documents tendered. The court attendance notice setting out the details of the offence, the bail undertaking given by Mr Trajkovski and I note that the conditions were that he not approach or contact the victim and secondly that he be of good behaviour.

1. Also tendered by the police is the facts sheet which sets out the allegations in relation to the charges that were made.

1. Turning then to each of the elements of s 60, the first requirement is that a stay is necessary to secure the effectiveness of the determination.

1. If a stay is not granted the applicant will suffer loss and damage for which he will not be compensated even if he is successful at a hearing. I accept that this is the applicant's only form of income and that although he may be able to find other employment this is the job that he has been doing for several years and it would not be easy for him to obtain other work.

1. I look now to the three matters set out in s 60 and deal firstly with the interests of Mr Trajkovski. That really is the matter which I have just been referring to, namely the fact that he would lose the job that he has had for several years and be deprived of the income to support his family. Also the business itself would lose the benefit of his services and Ms Fielding values very highly the skills that Mr Trajkovski has and employs in her business.

1. The critical issue in this case is the public interest and whether or not the public interest can be protected in circumstances where the applicant has been charged with such a serious offence in the course of his employment as a tattoo artist.

1. Mr Lynch submitted that the Tribunal should be satisfied based on the seriousness of the offence alone that this is not an appropriate matter for a stay. He pointed to various decisions including Farquharson v Director General, Department of Transport [1999] NSWADT 53, Rowe v Commissioner of Police [2010] NSWADT 307, Bahloul v Roads and Maritime Services [2013] NSWADT 200 and also to a decision on which I presided on appeal, Department of Transport and Infrastructure v Murray [2011] NSWADTAP 16.

1. A couple of propositions are not controversial and one is that when determining a stay application the Tribunal should not look behind the charges to determine the likelihood of a conviction. The Tribunal must accept that the person concerned has been charged with an offence and the objective seriousness of that charge is extremely relevant.

1. It is said in the decision in which I was the presiding member, Department of Transport and Infrastructure v Murray, that the question whether the determination and fitness and propriety is a question of fact for the decision maker to determine objectively on the basis of all the evidence. That question is not to be determined through the eyes of a reasonable member of the travelling public. Nor is it correct as was suggested in Farquharson to take into account the likely perceptions of the travelling public as one of the relevant factors in deciding whether an applicant is a fit and proper person.

1. Of course in this case the question is not about fitness and propriety but about the public interest, but nevertheless the question is not whether a person knowing that these charges had been made would be comfortable attending the tattoo parlour and being tattooed by Mr Trajkovski. The question is an objective one as to whether the interests of the public can be protected in the circumstances of this case.

1. In this case the charge is extremely serious as I have said and it is a charge of sexual intercourse without consent in the course of employment. So that raises serious concerns for the public interest.

1. But that is not the only thing that the Tribunal can take into account when determining whether the public interest can be protected. The Tribunal can also take into account, as I have in this case, the evidence from Mr Trajkovski, from his employee, Ms Fielding, from the other owner of the business, Mr Fielding, and from clients and friends who all support him and speak highly of both his skills as a tattoo artist and his fitness to carry out those duties based on their own experiences of him.

1. Of course those matters by themselves would not have persuaded me of the fact that the public interest can be protected in this case. The fact that conditions can be placed on Mr Trajkovski's licence has satisfied me that the public interest can be protected. So I have looked at the seriousness of the charges, the facts sheet that has been provided, the bail conditions, the references, the other evidence from the operators. The conditions which I propose are that Mr Trajkovski only tattoo male clients and that he only do so when another person of that client's choosing is present.

1. Mr Lynch made submissions about the proposed conditions saying that they were impracticable and unenforceable. Hearing from Mr Trajkovski himself and in particular from Ms Fielding today I am satisfied that if these proposed conditions are attached to the licence that they will be met and that if at any time they are not being met Ms Fielding will contact the Department and advise them of that situation.

1. I make that finding on the basis of the forthright evidence that Ms Fielding gave, the fact that she holds Mr Trajkovski in very high regard and the fact that her licence is pending approval by the Department or by the Director General or the Commissioner. I also am satisfied that the Department, if it chooses to do so, can visit the tattoo parlour at any time to satisfy itself that the conditions are being fulfilled. Both the applicant and Ms Fielding know that they would be subject to such a visit unannounced if that was what the Department chose to do.

1. I make no finding about the effect of s 11 subs (6) of the Tattoo Parlours Act. It is a matter of statutory construction as to whether Ms Fielding would be obliged under that provision to report any breach, but even without that condition I am satisfied that she would do so knowing that her own licence would be potentially under threat if she did not report any breach.

1. In summary I am satisfied on the basis of all the evidence that the public interest can be protected by attaching conditions to the licence. I also note that it will be up to 12 months if not longer before these charges are heard and a verdict is given. That is a very long time for Mr Trajkovski to be out of work especially in circumstances where he intends to plead not guilty to the charges.

ORDERS

The decision to cancel the applicant's tattooist licence is stayed on the following conditions:

1. That the applicant only perform body art tattooing procedures:

(a) on male clients of Wicked Ink Tattoo and Body Piercing Studio at 394 High Street Penrith; and

(b) in the presence of a third person observing the procedure agreed to by the client; and

(c) in a bay that is monitored by CCTV and which records all activity in the bay.

2. That the CCTV recording referred to in Order 1 not be overwritten.

3. That the CCTV recording referred to in Order 1 be preserved and produced to the Director, Security Licensing and Enforcement Directorate on demand.

4. The following orders are made:

(a) The respondent is to be re-described as the first respondent;

(b) The first respondent is to be re-named as the "Commissioner for Fair Trading";

(c) The Commissioner of Police is to be added as a party to the proceedings as second respondent.

5. Matter stood over for further directions on 30 January 2015 at 10 am.

6. Parties have liberty to apply to restore the matter to the list before that date.

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 February 2014