Institoris v Commissioner for Fair Trading & Anor

NCAT Administrative and Equal Opportunity|2014-10-21

The Applicant's evidence 13The Applicant's interests are his financial and personal interests in continuing to operate his businesses. His evidence was that his only source of income was from the operation of the parlours. At the time of closure the weekly gross takings of the parlours was in the vicinity of $28,000 - $35,000 depending on time of year. The average weekly expenditure in relation to the parlours was in the vicinity of $2300. 14He provided the following information in regard to the parlours: (1)The Wollongong shop The Applicant's evidence was that he opened the Wollongong shop about 8 years ago. The shop is operated from leased premises. Rent payable on the premises is $3,121.34 per month. The Lease is due to expire in about two years. (2)The Narellan shop The Applicant's evidence was that he acquired the Narellan shop in about 2008. The shop operates from premises owned by the company. The company purchased the premises in about September 2013. The premises were financed through a loan from the National Australia Bank. Monthly repayments under the loan are a minimum of $3,000. The outstanding balance of the loan is about $222,000. . (3)The Campbelltown shop The Applicant's evidence was that he acquired the Campbelltown shop in or about July 2008/2009. The shop is operated from leased premises. Rent payable on the premises is $3,249 per month. The Lease is due to expire in October 2015. (4)The Macarthur Square shop The Applicant's evidence was that he opened the Macarthur Square shop almost 5 years ago. The shop is operated from leased premises. Rent payable on the premises is around $5,000 per month. The Lease is due to expire in November 2019. 15The Applicant relies on correspondence from the Retail Manager at Macarthur Square indicating that the closure of the Macarthur Square shop represents a breach of the Lease Agreement. 16At the time of closure, there were fifteen tattooists working from the parlours as independent contractors paying commission to the shops on a 50/50 basis. He stated that to the best of his knowledge the tattooists are all fully licenced and none had any other source of income. 17He stated that in the time he has operated the parlours, he has never had any trouble with any authority related to the operation of any of the parlours, except for the alleged incorrect spelling of a word in a tattoo about five years ago. 18The Applicant stated that he is suffering significant financial hardship as a result of the decision to refuse to grant the licence application and the closure of the parlours. He provided details in regard to his personal circumstances and documentary evidence in regard to much of his asserted expenses. 19He completed his schooling to year 12 and attained the HSC. He also completed a basic Electronics Certificate when employed by Aristocrat as Poker Machine Technician. He has previously worked as a hotel manager and held a security guard licence. 20He currently owes in the vicinity of $285,000 on the mortgage over his residence and makes week repayments of $750. He also makes child support payments of $1,372.49 per month through the child support agency with a private arrangement in relation to another child. 21He is also aware of a debt of approximately $4.4 million asserted to be owed to the Australian Taxation Office. He is seeking advice from legal counsel and a new accountant in regards to the asserted debt. 22He estimated his weekly personal expenses to be in the vicinity of $1150. 23 Since the closure of the parlours he has no source of income and has had to rely on his personal savings of approximately $10,000 and loans from his mother. 24I accept that the Applicant's prospects of employment in any other occupation in the short term are poor. 25According to the Applicant, he has no criminal record and that he is not now and nor has he ever been involved in organised crime or indeed criminal activity of any type. He submits that there is no risk to the public interest if he continues to operate his tattoo businesses.

The Respondents' evidence 26The Director-General did not take an active role in the proceedings. The case for the Respondents was undertaken by the Commissioner. 27Mr Mantziaris made open submissions but also relied on confidential information and confidential submissions.

Confidential information 28[Not for publication]. 29 [Not for publication]. 30The Commissioner further contends that company has not complied with taxation legislation requirements with respect to tax returns. The ATO assessment reflects the ATO's view that the company has been used for purposes that has generated undeclared income. 31[Not for publication]. 32Material that falls within description of "criminal intelligence report or other criminal information" for the purposes of section 19(1) of the Act need not be disclosed. For the purposes of these proceedings I have not disclosed it. 33[Not for publication].

Public interest 34The Commissioner submitted that it would be contrary to the public interest for a licence to be granted to the Applicant for the reasons that he is a member of the Rebels. The Commissioner contends that OMCGS, including the Rebels, pose a significant criminal threat to the community and public safety. In particular, OMCGs have a proven propensity for extreme violence in support of their interests. It is submitted that there is a public interest in removing criminal elements from the tattoo industry and thereby protecting other operators or employees in the tattoo industry. The Commissioner further contends that there is a public interest in ensuring public confidence in the standards of this newly regulated industry. The involvement of OMCGs in the tattoo industry brings it into disrepute and lessens public confidence in it. 35[Not for publication]. 36The Commissioner submitted that it would be contrary to the public interest for a licence to be granted to the Applicant for the reason that he has not complied with taxation legislation. 37The Commissioner further submitted that the Applicant's personal interest in being granted the operator licences, which would enable him to carry on body art tattooing businesses, is substantially outweighed by the public interest against granting him the licences.

Conclusion 38The Applicant has been operating tattoo parlours for many years. Under the new legislative scheme he now requires a licence. The Commissioner has refused his application for a licence based, to some extent, on criminal intelligence information. That information has not been disclosed to the Applicant. 39Based on all the evidence, I am satisfied that it is contrary to the public interest for the Applicant to be permitted to continue operating his business between now and the date on which the Tribunal determines his application. 40 [Not for publication]. 41The Applicant has a strong financial and personal interest in continuing to operate his business. However, in my view there is significant risk to the public interest in the short term if he is permitted to continue trading.

Order The application for a stay of the decision to refuse to grant the Applicant operator's licences under the Tattoo Parlours Act 2012 is refused.

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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 December 2014

Power to stay a decision 7The Tribunal may make an order "staying or otherwise affecting" the operation of the decision. Section 60 of the Administrative Decisions Review Act 1997 provides: (1) Subject to this section, an application to the Tribunal for an administrative review under this Act of an administratively reviewable decision does not affect the operation of the decision under review or prevent the taking of action to implement that decision. (2) On the application of any party to proceedings for an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application. (3) The Tribunal may make an order under this section only if it considers that it is desirable to do so after taking into account: (a) the interests of any persons who may be affected by the determination of the application, and (b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and (c) the public interest. (4) While an order is in force under this section (including an order that has previously been varied on one or more occasions under this subsection), the Tribunal may, on application by a party to the proceedings, vary or revoke the order by another order. 8In AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 ("AVS v Police") the Court of Appeal found that section 60(2) is wide enough to enable the Tribunal temporarily to reinstate a licence that has been revoked. The Tribunal therefore has power to make an order which has the effect of temporarily granting an operator's licence to enable the situation prior to the decision to continue.

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