Jay v Commissioner for Fair Trading

Power to stay a decision 4The general rule is that an application to the Tribunal for an administrative review of a decision does not prevent the decision from taking effect. But the Tribunal may make an order "staying or otherwise affecting" the operation of the decision. The power is set out in s 60 of the Administrative Decisions Review Act 1997 (NSW): (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.

Meaning of "staying or otherwise affecting the operation of the decision" 5Because this case involves the refusal of an application for a licence, the staying of that decision would mean that Mr Jay does not have a licence. But s 60 also gives the Tribunal power to make an order "otherwise affecting the operation of the decision". In AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 at [16] Basten JA described the word "stay" as "a somewhat imprecise term which is usually understood to refer to a future event". In that case, which involved the revocation of a licence, the Court of Appeal acknowledged at [16] to [18] and [95] to [96] that while it is not possible to "stay" the revocation decision, s 60(2) is wide enough to enable the Tribunal temporarily to reinstate a licence that has been revoked. 6Applying the same reasoning to this case, the Tribunal has power to make an order which has the effect of temporarily granting an operator's licence to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. This is an unusual case because Mr Jay was operating without the need for a licence before the decision was made.

Threshold issue - securing the effectiveness of the determination 7A threshold issue for the Tribunal is whether it is appropriate to grant a stay to "secure the effectiveness of the determination of the application". In Williamson v Director General, Department of Transport [2000] NSWADT 165 the Administrative Decisions Tribunal gave examples of cases where the Administrative Appeals Tribunal had interpreted that phrase in the equivalent Commonwealth provision - s 41 of the Administrative Appeals Tribunal Act 1975 (Cth). In those decisions, the AAT held that the phrase means that without a stay: (1)the hearing will not be fully effective: Australian (NDT) Services Pty Ltd and Civil Aviation Safety Authority [1999] AATA 79 at [13]; (2)the hearing will be "jeopardised" or "rendered nugatory": Re Repatriation Commission and Delkou (1985) 8 ALD 454 at [8]; (3)the applicant will suffer serious irreparable harm, in the sense that no recompense for it can be obtained if the application for review is successful: Re Pelling and Secretary, Department of Aviation (1984) 5 ALD 638 at 639. 8In Williamson at [15] and [20] the Tribunal gave examples of situations where a stay may be necessary to secure the effectiveness of the hearing including where an applicant "has ceased trading or is unable to restart operations" or will lose "reasonable employment prospects". 9Recently the Court of Appeal explained the threshold test as applying to circumstances where there is no "practical point" in reviewing the decision if a stay is not granted or the applicant will be deprived temporarily of the benefit of a favourable decision: There is an express statutory power for the Tribunal to grant or refuse a stay or other order "as it considers appropriate to secure the effectiveness of the determination of the application". In other words, the purpose of granting a stay or other order is connected with the determination of the application. "[S]ecur[ing] the effectiveness of the determination of the application" involves matters such as ensuring that the lapse of time before the determination is actually made does not deprive the review of practical point. It also involves considering the possibility that the result of the review might be that the decision is affirmed, with the consequence that if a s 60(2) order is granted the decision that the review ultimately decides was correct has not been implemented during the period of the s 60(2) order: AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 at [129] (Campbell JA, Handley JA agreeing)

Evidence of threshold issue 10Mr Jay's evidence was that he could no longer sustain the financial burden of maintaining his business while not receiving any income from that business. His assets include a home unit, which he is currently attempting to rent out, and a property which he has recently purchased using equity from the unit. He hopes to use the property to operate his business. Both properties are mortgaged. Mr Jay said that he will not be in a financial position to resume trading after the hearing if a stay is not granted. He said he has been borrowing money from his mother and his partner to continuing paying his debts but they are no longer able to provide him with further funds. 11His oral evidence was supported by a print out of his National Australia Bank internet banking history for the period 15 September 2014 to 13 October 2014. That document shows that he currently has a balance of $1,639.91 in his account. He has not applied for benefits from Centrelink in the short time since the decision was made. Nor has he applied for any other employment. Mr Jay said that his employment prospects are limited. His only skill is as a tattoo artist and he says there are few job opportunities in the area in which he lives. The documentary evidence on this point consisted of a two page print out from a website called "indeed." While Mr Jay has not applied for any kind of job since the Commissioner made the decision, I accept that his prospects of employment as a tattoo artist or in any other unskilled occupation in the short term are poor.

Interests of the parties 12Mr Jay's interests are his financial and personal interests in continuing to operate his business. Mr Jay has employed Mr Tran as a tattoo artist on a full time basis since February 2012. He also has an interest in a stay being granted. He has a mortgage and says that his prospects of employment as a tattoo artist in the area are very poor.

Mr Jay's criminal record 13Mr Jay was convicted of common assault on 10 June 2008. He was released on a good behaviour bond for 12 months under s 9 of the Crimes (Sentencing Procedure) Act 1999. 14On 6 March 2009 Mr Jay was convicted of driving with alcohol in his blood, fined $250 and disqualified from driving for 3 months.

Confidential information 15[Not for publication]. 16[Not for publication]. 17[Not for publication]. 18[Not for publication]. 19[Not for publication]. 20[Not for publication]. 21[Not for publication]. 22[Not for publication]. 23[Not for publication].

Character references 24Clients and friends of Mr Jay provided references as to his good character. These references have relatively low probative value in determining Mr Jay's fitness.

Public interest 25[Not for publication]. 26According to Mr Jay, he has not been, nor is he currently, involved in any criminal organisation. He submits that because his conviction was not related to organised crime and occurred before he became a tattoo artist, there is no risk to the public interest if he continues to operate his business.

Conclusion 27Mr Jay has been operating a tattoo parlour for approximately 3 years. Under the new legislative scheme he now requires a licence. The Commissioner of Police has refused his application for a licence based, to some extent, on criminal intelligence information. That information has not been disclosed to Mr Jay. 28Based on all the evidence, I am satisfied that it is not contrary to the public interest for Mr Jay to be permitted to continue operating his business between now and the date on which the Tribunal determines his application. The hearing is listed in 4 weeks' time, on 12 November 2014. A decision will be handed down shortly after the hearing. 29[Not for publication]. 30Mr Jay has a strong financial and personal interest in continuing to operate his business and there is virtually no risk to the public interest in the short term if he is permitted to continue trading.

Order The operation of the decision 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 pending the determination of these proceedings.

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: 24 October 2014