Vougamalis v Commissioner for Consumer Affairs - [2012] SADC 98

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
VOUGAMALIS v COMMISSIONER FOR CONSUMER AFFAIRS
[2012] SADC 98
Judgment of His Honour Judge Costello
2 August 2012
PROFESSIONS AND TRADES - OTHER PROFESSIONS, TRADES OR CALLINGS - LICENSING OF PARTICULAR TRADES OR CALLINGS - OTHER CALLINGS
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - INCORPORATION OF OTHER STATUTORY PROVISIONS
Appeal pursuant to s 11 of Security and Investigation Agents Act 1995 against Commissioner's decision to refuse appellant's application for Security Agent's Licence - application refused because inter alia appellant convicted of offences against Firearms Regulations 1993 - offences disentitling an applicant to a licence included offences against Firearms Act 1977 - appellant argued that offences against Firearms Act 1977 did not include offences against Firearms Regulations 1993 - Acts Interpretation Act 1915 defines the phrase "the Act" to include the Regulations "unless the contrary intention appears" - appellant argued that the terms of Schedule 1 to the Security and Investigation Agents Regulations 2011, which sets out the classes of disentitling offences, evinced an intention to exclude offences against the Firearms Regulations 1993 so as to displace the presumption in the Acts Interpretation Act - meaning of "contrary intention" considered - contrary intention not demonstrated - Commissioner entitled to have regard to offences against Firearms Regulations 1993 - no cogent reason to interfere with Commissioner's decision - appeal dismissed.
Security and Investigation Agents Act 1995; District Court Act 1991; Security and Investigation Agents Regulations 2011; Firearms Act 1977; Firearms Regulations 1993; Acts Interpretation Act 1915; Listening and Surveillance Devices Act 1972; Listening and Surveillance Devices Regulations 2003, referred to.
Commissioner for Consumer Affairs v Standley (1998) 71 SASR 152; Forsyth v Deputy Commissioner of Taxation (2004) 62 NSWLR 132; Deputy Commissioner of Taxation v Mutton (1988) 12 NSWLR 104; Pollitt v Police (2007) 251 LSJS 306, considered.

VOUGAMALIS v COMMISSIONER FOR CONSUMER AFFAIRS
[2012] SADC 98
Introduction

This is an appeal pursuant to the provisions of s 11 of the Security and Investigation Agents Act 1995 (“the SIAA”) against a decision of the Commissioner for Consumer Affairs (“the Respondent”) to refuse the appellant’s application for a security agent’s licence (“the licence”).
The Commissioner determined to refuse the application upon the basis that the appellant had been convicted of a particular class of offence (specified in Schedule 1 to the Security and Investigation Agents Regulations 2011) (“the SIAR”) in relation to the functions of a security agent and that he was not a fit and proper person to hold a licence.
The Appeal
The appeal to this Court is (as I have said) brought pursuant to s 11 of the SIAA. The conduct of the appeal is governed by the provisions of ss 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…

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.

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Details

Case: [2012] SADC 98
Decision Date: 2 August 2012

CaseChat Overview and Summary

Vougamalis sought to appeal the Commissioner for Consumer Affairs' decision to deny his application for a Security Agent's Licence. The denial was based on the appellant's prior convictions under the Firearms Regulations 1993, which the Commissioner considered grounds for refusal. Vougamalis argued that the Commissioner's decision was flawed as it should have only considered convictions under the Firearms Act 1977, not the Regulations. The crux of the appeal was whether the term "the Act" in the Security and Investigation Agents Act 1995, which incorporates the Regulations, excluded convictions under the Firearms Regulations 1993 from being considered disqualifiers for a Security Agent's Licence.

The court had to determine the scope of the term "the Act" when it included the Firearms Regulations 1993, as per the Acts Interpretation Act 1915. Vougamalis contended that the contrary intention to exclude the Regulations was evident in Schedule 1 of the Security and Investigation Agents Regulations 2011, which lists disqualifiers. However, the court found that the appellant failed to demonstrate that the Commissioner's interpretation, which included offences under the Firearms Regulations 1993, was incorrect. The court held that the Appeals Tribunal was entitled to consider offences against the Regulations when determining whether an applicant was disqualified from obtaining a Security Agent's Licence.

In light of the court's reasoning, the appeal was dismissed. The court found no cogent reason to interfere with the Commissioner's decision, affirming that the Commissioner was correct in considering the appellant's convictions under the Firearms Regulations 1993 as grounds for refusal. The court's decision upheld the Commissioner's authority to interpret the scope of disqualifiers for a Security Agent's Licence, including those specified in the Regulations.

Orders