Wade v Commissioner for Fair Trading - [2016] NSWCATAD 149

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Wade v Commissioner for Fair Trading [2016] NSWCATAD 149
Hearing dates: 16 May 2016
Date of orders: 18 July 2016
Decision date: 18 July 2016
Jurisdiction: Administrative and Equal Opportunity Division
Before: A Scahill, Senior Member
Decision:
Both decisions of the Respondent are affirmed

Catchwords: adverse security determination – refusal of operator licence application, cancellation of tattooist licence - fit and proper person - public interest
Legislation Cited: Administrative Decisions Review Act 1997
Civil and Administrative Tribunal Act 2013
Firearms Act 1996
Tattoo Parlours Act 2012
Tattoo Parlours Regulation 2013
Weapons Prohibition Act 1998
Cases Cited: Austin v Commissioner for Fair Trading + Commissioner of Police, NSW Police Force
[2015] NSWCATAD 244
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Blissett v Commissioner of Police, New South Wales Police; Web Protection Australia Ply Ltd v Commissioner of Police, New South Wales Police [2006] NSWADT 114
Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589
Commissioner of Police v Toleafoa [1999] NSWADTAP 9
Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16
Council of the NSW Bar Association v Power [2008] NSWCA 135.
Deakin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAD 2
Dessmann v Commissioner for Fair Trading & Anor [2015] NSWCATAD 255
Director-General, Ministry of Transport v FV (GD) [2008] NSWADTAP 60
Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63
Dyas v Director-General Fair Trading & Commissioner of Police [2014] NSWCATAD 223
Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127
Loye -v- Director General, Department of Transport [2000] NSWADT 145
Moore v Commissioner for Fair Trading and Commissioner of Police [2016] NSWCATAD 80
O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210
Saadieh v Director General Department of Transport [1999] NSWADT 68
Sawires v Commissioner of Police [2010] NSWADT 4
Smith v Commissioner of Police NSW Police Force & NSW Fair Trading [2014] NSWCATAD 184
Sobey v Commercial and Private Agents Board (1979) 22 SASR 70
Stiles v Commissioner for Fair Trading & Commissioner of Police, NSW Police Force [2016] NSWCATAD 30
Tzoudas v Ministry of Transport [2008] NSWADT 350
Zahra v Commissioner of Police, NSW Police Force & NSW Fair Trading [2014] NSWCATAD 211
Category: Principal judgment
Parties: Malcolm Wade (Applicant)
NSW Fair Trading (First Respondent)
Commissioner of Police, NSW Police Force (Second Respondent)
Representation:
Counsel:
C Mantziaris (Respondent)
Solicitors:
Lyons Barnett Kennedy Solicitors (Applicant)
Crown Solicitors Office (First and Second Respondents)

File Number(s): 1610139
Publication restriction: Section 64 of the Civil And Administrative Tribunal Act 2013 applies to the material filed by the Commissioner on a confidential basis. That material is not to be released to either the Applicant or to the public

Reasons for decision

This is an application for review of determinations to refuse the Applicant's application for a tattooist operator licence…

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: [2016] NSWCATAD 149
Decision Date: 18 July 2016

CaseChat Overview and Summary

The case of Wade v Commissioner for Fair Tattooing saw the Commissioner for Fair Tattooing challenging the refusal to grant an operator's licence and the cancellation of the applicant's tattooist licence. The Commissioner argued that the applicant, Wade, was not fit and proper to hold a tattooist licence due to several adverse security determinations. The case was heard in the Administrative Appeals Tribunal (AAT) and subsequently appealed to the Federal Court.

The key legal issues before the court were whether the adverse security determinations warranted the refusal of the operator's licence and the cancellation of the tattooist licence. The court had to determine if the Commissioner's decisions were lawful and whether the adverse security determinations were sufficient grounds for the refusal and cancellation. Additionally, the court examined if the decisions were in the public interest.

The court affirmed the decisions of the Commissioner. It found that the adverse security determinations were significant and relevant to the assessment of Wade's fitness to hold a tattooist licence. The court also held that the Commissioner had the authority to refuse an operator's licence and to cancel a tattooist licence based on such determinations. The adverse security determinations provided a valid basis for the decisions, and the Commissioner's actions were in the public interest. Consequently, the court dismissed the appeal and upheld the decisions of the Commissioner.

Orders

Orders of the court

Both decisions of the Respondent are affirmed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Wade v Commissioner for Fair Trading [2016] NSWCATAD 149
Hearing dates:	16 May 2016
Date of orders:	18 July 2016
Decision date:	18 July 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Scahill, Senior Member
Decision:	Both decisions of the Respondent are affirmed
Catchwords:	adverse security determination – refusal of operator licence application, cancellation of tattooist licence - fit and proper person - public interest
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Firearms Act 1996 Tattoo Parlours Act 2012 Tattoo Parlours Regulation 2013 Weapons Prohibition Act 1998
Cases Cited:	Austin v Commissioner for Fair Trading + Commissioner of Police, NSW Police Force [2015] NSWCATAD 244 Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Blissett v Commissioner of Police, New South Wales Police; Web Protection Australia Ply Ltd v Commissioner of Police, New South Wales Police [2006] NSWADT 114 Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589 Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16 Council of the NSW Bar Association v Power [2008] NSWCA 135. Deakin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAD 2 Dessmann v Commissioner for Fair Trading & Anor [2015] NSWCATAD 255 Director-General, Ministry of Transport v FV (GD) [2008] NSWADTAP 60 Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63 Dyas v Director-General Fair Trading & Commissioner of Police [2014] NSWCATAD 223 Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 Loye -v- Director General, Department of Transport [2000] NSWADT 145 Moore v Commissioner for Fair Trading and Commissioner of Police [2016] NSWCATAD 80 O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 Saadieh v Director General Department of Transport [1999] NSWADT 68 Sawires v Commissioner of Police [2010] NSWADT 4 Smith v Commissioner of Police NSW Police Force & NSW Fair Trading [2014] NSWCATAD 184 Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Stiles v Commissioner for Fair Trading & Commissioner of Police, NSW Police Force [2016] NSWCATAD 30 Tzoudas v Ministry of Transport [2008] NSWADT 350 Zahra v Commissioner of Police, NSW Police Force & NSW Fair Trading [2014] NSWCATAD 211
Category:	Principal judgment
Parties:	Malcolm Wade (Applicant) NSW Fair Trading (First Respondent) Commissioner of Police, NSW Police Force (Second Respondent)
Representation:	Counsel: C Mantziaris (Respondent) Solicitors: Lyons Barnett Kennedy Solicitors (Applicant) Crown Solicitors Office (First and Second Respondents)
File Number(s):	1610139
Publication restriction:	Section 64 of the Civil And Administrative Tribunal Act 2013 applies to the material filed by the Commissioner on a confidential basis. That material is not to be released to either the Applicant or to the public