McDonald v Commissioner for Fair Trading

Introduction

1. The appellant, Steven McDonald, seeks to appeal a decision of the Tribunal, in the Administrative and Equal Opportunity Division, which affirmed the decision of the first respondent, the Commissioner for Fair Trading, to refuse his application for the grant of an "operator" licence under the provisions of the Tattoo Parlours Act 2012 (TP Act): see McDonald v Commissioner of Fair Trading and Commissioner of Police [2017] NSWCATAD330.
2. The appellant is the sole director and shareholder of Carnival of Carnage Tattoo Studio Pty Ltd, which conducts a tattooing business from premises at Windsor, in NSW. The appellant does not and has not performed any body art tattooing. His business has at all times engaged others to perform this task.
3. The appellant lodged his application for an "operator" licence with the first respondent (the administrator of the TP Act), in September 2013. As the appellant had lodged his application for an "operator" licence before 1 October 2013, he was entitled to operate his tattoo business until he was notified that his application had been refused or treated as withdrawn: see TP Act, Sch 1, cl 1 and Tattoo Parlour Regulations 2013, s 29 as they applied in September 2013.
4. On 20 July 2017, as required under s 16(3)(c) of the TP Act, the first respondent, determined to refuse the appellant's application for an "operator's" licence after he had received an adverse security determination from the second respondent, the Commissioner of Police. In accordance with s 14(1)(b) of the TP Act, the respondent had referred the applicant's application to the second respondent for investigation and determination as to whether; (a) the applicant is a fit and proper person, (b) a close associate of the applicant is a fit and proper person, or (c) it would be contrary to the public interest for the licence to be granted.
5. In accordance with s 19(1) of the TP Act, on 17 July 2017, the second respondent determined that, on the basis of the appellant's disregard for the provisions of the licensing legislation, the applicant was not a fit and proper person to be granted an operators licence and that it would be contrary to the public interest for a licence to be granted.
6. As we have noted, on 16 November 2017, the Tribunal affirmed the decision of the first respondent (the administrator) to refuse the appellant's application for an operator's licence. On 28 November 2017 the appellant lodged his Notice of Appeal seeking to appeal the decision of the Tribunal below. In his Notice of Appeal, the appellant said he was appealing the decision because he did not believe he was treated fairly or given the opportunity to plead his case. He went on to say that the "prosecutors had all day I had 30 minutes at the end of the day".
7. In their Reply to Appeal, the respondents supported the original decision of the Tribunal below.
8. After having filed his Notice of Appeal, the appellant engaged Mr C Maspero, of Maspero Legal to act on his behalf. On 21 February 2018, the appellant filed and served an Amended Notice of Appeal. By consent and with the leave of the Appeal Panel, the hearing of the appellants' appeal proceeded on the basis of the Amended Notice of Appeal, the grounds of which were identified as: "1. The Tribunal erred in the fit and proper person test; and 2. The Crown relied on OMCG's as part of their decision whereas there are no OMCGs
9. This appeal will deal mainly as to whether Mr McDonald is a fit and proper person in order to have a Tattoo Operator's licence."
10. The appellant's appeal was heard on 2 March 2018. There is no dispute that the decision of the Tribunal is an internally appealable decision, or that an appeal lies to the Appeal Panel as of right on a question of law, or with the leave of the Appeal Panel on any other grounds: see Civil and Administrative Tribunal Act 2013 (NCAT Act), s 80(1) and (2)(b).
11. The general principles applicable to the Appeal Panel granting leave to appeal are those set out in Collins v Urban [2014] NSWCATAP, at [84] : "80 The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there."
12. Notwithstanding the decision of the first respondent and the decision of the Tribunal below, the appellant has been able to continue to operate his tattoo business. This is because on 5 September 2017 the Tribunal made an order staying the operation of the decision of the first respondent pending determination of the appellant's review application. On 16 November 2017, when the Tribunal made orders affirming the decision of the first respondent, it also made an order lifting the stay order. On 7 December 2017, the Appeal Panel, constituted by Principal Member Mr Harrowell, made a further order staying the operation of the decision of the first respondent to refuse the appellant's application for an operator licence. At the end of the hearing of the appellant's appeal, we made an order extending that stay pending further order by the Appeal Panel.
13. For the reasons set out below, we have decided that the appellant's appeal should be dismissed. We are not satisfied that the appellant has established any appealable error by the Tribunal below. In our opinion, on the evidence before the Tribunal and the regulatory obligations placed on persons who are granted an operator licence under the TP Act, the Tribunal did not err in its finding that the appellant, at the time of hearing, was not a fit and proper person to be granted such a licence either on a question of law or in a manner that warrants a grant of leave to appeal. In our opinion, the finding of the Tribunal that the appellant was not a fit and proper person was open to it on the material before the Tribunal.

Material before the Appeal Panel

1. In this appeal the parties relied on an agreed tender bundle of documents prepared by the respondent. The Tender bundle consisted of two volumes of documents that were individually tabbed. Included in the tender bundle was the material that was before the Tribunal below and the transcript of the hearing of the appellant's application (27 July and 5 September 2017) and the hearing of his review application (23 October 2017).
2. The appellant also sought to rely on some further documents. We accepted the document dated 29 November 2011 and the bundle of documents filed in February 2018 as being part of the appellant's submissions. The remaining document we marked as MFI A1 as it contained fresh evidence and copies of material that were before the Tribunal below and contained in the agreed bundle of documents. The fresh evidence was a fresh application for an operator licence that the appellant had executed two weeks after the Tribunal's decision was published, on 30 November 2017. This application was of no relevance to this appeal.
3. We have also had regard to the unredacted decision of the Tribunal below and pursuant to an order under s 64 of the Civil and Administrative Tribunal Act the appeal hearing was conducted in part, in confidence, in the absence of the public and the appellant and his legal representative and we have made an order prohibiting the publication or disclosure of the sound recording or transcript of that portion of the hearing.

Relevant legislative scheme

1. The TP Act was enacted in 2012, and commenced full operation on 1 March 2013. The Act established a licensing system within New South Wales for the tattoo industry. Previously, this industry was only regulated under the relevant planning and health and safety laws.
2. The TP Act formed part of a broader legislative response to the problem of gang crime in New South Wales, including gang crime within organisations described as outlaw motor cycle gangs. Outlaw motor cycle gang (OMCG) is a term commonly used to refer to motor cycle gangs that are perceived to engage in criminal activities, or have been formally declared to be a criminal organisation under the Crimes (Criminal Organisations Control) Act 2012 (CCOC Act). As at the date of hearing before the Tribunal and the hearing of the appeal, no declarations had been made under that Act. Nevertheless, this broader context is relevant to the assessment of a person's fitness and propriety to be issued with a licence under the TP Act.
3. The TP Act makes provision for two kinds of licences, an operator licence and a tattooist licence: TP Act, s 9. The Act also: 1. prohibits a person from carrying on a body art tattooing business (whether on the person's own behalf or on behalf of another person) at any premises unless that person is the holder of an operator licence authorising him/her/it to do so: see TP Act, s 6. Where a body art tattooing business is carried on (or is proposed to be carried on) at more than one set of premises, a separate operator licence is required to be held by a person for each set of premises for the purposes of that section; 2. prohibits an individual from performing any body art tattooing procedure for a fee or reward unless authorised to do so by a tattooist licence: see TP Act, s 7; and 3. prohibits a person from employing an individual to work as a body art tattooist unless the individual is the holder of a tattooist licence: see TP Act, s 8.
4. As we have noted above, the appellant made his application for an operator's licence prior to 1 October 2013 and it was not until 27 July 2017 that the first respondent determined his application. As a consequence of the transitional provisions in cl 1 of Sch 1 of the TP Act and cl 29 of the Tattoo Parlour Regulations 2013, sections 6, 7 and 8 did not apply to him and he was able to continue operating his business until his application was determined. However, he was subject to the other provisions of the TP Act and the TP Regulation.

Applications for a licence

1. Applications for the grant of a licence are made to the first respondent: see TP Act s 11. Only individuals can make an application for a licence and the application must contain the information prescribed in s 11 of the TP Act, including the following: "11 Licence applications (1) … (3) An application for an operator licence in connection with a body art tattooing business that is owned or operated by or on behalf of a corporation, partnership or trust must be made by an individual nominated by the corporation, partners or trustees to be the premises manager for the purposes of carrying on that business at the premises for which the licence is sought. (4) … (5) An application for a licence must: (a) be in the approved form and manner, and (b) state the full name and residential address of the applicant, and (b1) in addition to the statement required under section 12, be accompanied by copies of 3 forms of personal identification of an approved kind for each individual identified as a close associate in that statement, and (c) in the case of an operator licence: (i) specify the address of the proposed licensed premises, and (ii) specify the names and residential addresses of each staff member employed (or, if no staff members are currently employed, proposed to be employed) to work at the proposed licensed premises, and (iii) if the business to which the application relates is owned or operated by or on behalf of a corporation, partnership or trust - be accompanied by evidence in the approved form and manner that the applicant has been nominated by the corporation, partners or trustees to be the premises manager, and (d) …" (bold added) "
2. Where a person makes an application for the grant of an operator licence, that person must also include with his/her application a statement as to his/her close associates: see TP Act s 12, which provides as follows: "12 Statement as to close associates of applicant for operator licence (1) An application for an operator licence or for the renewal of an operator licence must be accompanied by a written statement in the approved form, made by the applicant, specifying: (a) that the applicant has made all reasonable inquiries to ascertain the information required to complete the statement, and (b) the following information about any close associates of the applicant: (i) if the associate is an individual - the individual's name and date of birth, (ii) if the associate is a proprietary company - the name and ACN of the company and the names of its directors and shareholders, (iii) if the associate is any other kind of corporation - the name of the corporation, its ACN or ARBN (if any) and the names of the directors or members of its governing body, (iv) if the associate is a partnership - the trading name of the partnership and the names of the partners (including any silent partners), (v) if the associate is a trust - the names of the trustee or trustees and, if a trustee is a proprietary company or other corporation, the information referred to in subparagraphs (ii) and (iii) concerning its management and shareholders. (2) The regulations may provide for exceptions to this section. (3) In this section: ACN, ARBN and proprietary company have the same meanings as they have in the Corporations Act 2001 of the Commonwealth."
3. The words "close associate" are defined in s 4 of the TP Act as follows: "4 Meaning of "close associate" (1) For the purposes of this Act, a person is a close associate of an applicant for a licence or a licensee if the person: (a) holds or will hold any relevant financial interest, or is or will be entitled to exercise any relevant power (whether in the person's own right or on behalf of any other person), in the business of the applicant or licensee that is or will be carried on under the authority of the licence, and by virtue of that interest or power is or will be able (in the opinion of the Commissioner) to exercise a significant influence over or with respect to the management or operation of that business, or (b) holds or will hold any relevant position, whether in the person's own right or on behalf of any other person, in the business of the applicant or licensee that is or will be carried on under the authority of the licence, or (c) is or will be engaged as a contractor or employed in the business of the applicant or licensee that is or will be carried on under the authority of the licence. (2) For the purposes of this section, a financial institution is not a close associate by reason only of having a relevant financial interest in relation to a business. (3) The provisions of this section extend to relevant financial interests and relevant powers even if those interests and powers are not payable, exercisable or otherwise enforceable as a matter of law or equity, but are nevertheless payable, exercisable or otherwise enforceable as a matter of fact. (4) In this section: relevant financial interest, in relation to a business, means: (a) any share in the capital of the business, or (b) any entitlement to receive any income derived from the business, or to receive any other financial benefit or financial advantage from the carrying on of the business, whether the entitlement arises at law or in equity or otherwise, or (c) any entitlement to receive any rent, profit or other income in connection with the use or occupation of premises on which the business is or is to be carried on (such as, for example, an entitlement of the owner of the premises at which the business is carried on to receive rent as lessor of the premises). relevant position means: (a) the position of director, manager or secretary, or (b) any other position, however designated, if it is an executive position. relevant power means any power, whether exercisable by voting or otherwise and whether exercisable alone or in association with others: (a) to participate in any directorial, managerial or executive decision, or (b) to elect or appoint any person to any relevant position."

Determining an application for a licence

1. As we have noted above, s 14(1)(b) of the TP Act provides that on receipt of an application for a licence, the first respondent is required to refer that application to the second respondent for investigation and determination as to one or more of the following: "(i) whether the applicant is a fit and proper person, (ia) whether a close associate of the applicant is a fit and proper person, (ii) whether it would be contrary to the public interest for the licence to be granted …"
2. Where the first respondent has referred an application for a licence to the second respondent, s 19(1) of the TP Act makes provision for the second respondent to inquire into and determine, and report to the first respondent in regard to the abovementioned matters. For the purpose of making a determination on any of these matters, s 19(3) of the TP Act provides that the second respondent may have regard to any criminal intelligence report or other criminal information held in relation to the applicant or licensee (or a close associate of the applicant, or licensee) that: "(a) is relevant to the business or procedures proposed to be carried on or performed, or carried on or performed, under the licence, or (b) causes the Commissioner to conclude that improper conduct is likely to occur if the applicant were granted the licence or the licensee continued to hold the licence, or (c) causes the Commissioner not to have confidence that improper conduct will not occur if the applicant were granted the licence or the licensee continued to hold the licence."
3. Section 20(1) of the TP Act provides that the second respondent is not required to give reasons for determining a matter (i.e. an adverse security determination), where those reasons would disclose the existence or content of any criminal intelligence report or other criminal information. Section 20(2) contains a similar provision in regard reasons for not granting a licence to a person where the first respondent has made an adverse security determination about the person and the giving of reasons would disclose the existence or content of any criminal intelligence report or other criminal information.
4. Section 16 of the TP Act sets out how the first respondent is to determine an application for a licence, or the renewal of a licence. That section relevantly provides as follows: "16 Decision of Secretary in relation to licence applications (1) The Secretary may, after considering an application for a licence or for the renewal of a licence and the determination of the Commissioner under section 19 on the application, grant or renew the licence or refuse to grant or renew the licence. (2) The Secretary may, in such circumstances as the Secretary considers appropriate, treat an application for a licence or for the renewal of a licence as having been withdrawn. (3) The Secretary must not grant or renew a licence if: (a) … … (c) an adverse security determination has been made by the Commissioner about the applicant. (4) …"
5. As we have noted above, the appellant's operator licence was refused under s 16(3)(c) above. Having received an adverse security determination, the first respondent had no discretion and was required to refuse the grant of an operator's licence to the appellant.

Conditions to a licence

1. Sections 21 to 24 of the TP Act sets out a number of conditions to a licence issued under the TP Act. Section 22 requires a licensee to give written notice to the first respondent of a change to any particular in respect of the licence (including change of residential address and any change in regard to the particulars of a close associate). Such notice is to be given within 14 days of any change.
2. Section 22A prohibits the holder of an operator's licence from permitting procedures by unlicensed body art tattooists on the licensed premises.
3. Section 23 provides that the holder of an operator licence, must, within 20 business days after a change in staff employment (i.e. any new staff member or where a staff member ceases to be employed at the premises), give written notice to the first respondent of that change.
4. Division 3 of Part 3 of the TP Regulation contains additional special conditions relating to operator licences, including what particulars are to be provided in respect of the changes prescribed in ss 22 and 23 of the TP Act.

Administrative review

1. Where the first respondent refuses to grant a licence to a person, s 27(1)(a) of the TP Act gives that person a right to seek administrative review of that decision pursuant to the Administrative Decisions Review Act 1997.
2. In Smith v Commissioner of Police and Commissioner of Fair Trading [2014] NSWCATAD 184, at [13], the Tribunal noted that the TP Act did not expressly confer jurisdiction on the Tribunal to review any report or determination made by the second respondent. However, the Tribunal went on to say, at [15], that by reason of s 27(3)(c) of the TP Act, unlike the first respondent, the Tribunal is given a discretion to grant a licence despite the adverse security determination made by the second respondent.
3. Section 27(3) of the TP Act relevantly provides as follows: "27(3) If an application for a licence … was refused … by the Secretary on the ground of an adverse security determination made by the Commissioner about the applicant for the administrative review or a close associate of the applicant: (a) the Commissioner (as well as the Secretary) is to be a party to any proceedings in the Civil and Administrative Tribunal for an administrative review of the decision of the Secretary, and (b) the Tribunal is to be provided with a copy of the report of the Commissioner's determination, and (c) the Tribunal is not prevented from determining whether the Secretary made the correct and preferable decision regarding the application or the licence concerned merely because of the determination of the Commissioner."
4. As pointed out by the Tribunal in Smith (supra), at [25], by reason of s 27(3)(c) the Tribunal is required to take the adverse security determination into account as an essential legally relevant consideration to which appropriate weight must be given in determining the correct and preferable decision at the time of hearing a review application: see also Austin [2016} NSWCATAP 179, at [37].
5. Where a decision of the first respondent was made on the grounds of an adverse security determination made by the second respondent, section 27(4) of the TP Act provides that the Tribunal (and any Appeal Panel of the Tribunal in determining any internal appeal against such a review under the Civil and Administrative Tribunal Act 2013): "(a) is to ensure that it does not, in the reasons for its decision or otherwise, disclose the existence or content of any criminal intelligence report or other criminal information without the approval of the Commissioner, and (b) in order to prevent the disclosure of any such report or other criminal information, is to receive evidence and hear argument in the absence of the public, the applicant for the administrative review, the applicant's representative and any other interested party, unless the Commissioner approves otherwise."
6. The role of the Tribunal in determining the matter is set out in s 63 of the Administrative Decisions Review Act, namely to decide what the correct and preferable decision is having regard to the material before it, including any relevant factual material and any applicable written or unwritten law.

Factual Background

1. The appellant is almost 37 years of age.
2. In 2012, when he was 31 years of age, the appellant commenced operating a tattoo parlour business called "Carnival of Carnage Tattoo Studio". We understand that he was the owner of the business but did not do any tattooing. In September 2013, the appellant lodged his application for an operator licence. As we have noted, the appellant needed to lodge that application before 1 October 2013 if he wanted to continue to operate his business.
3. In making his application for an operator licence, the appellant completed the pro-forma application form of the first respondent. On that form, the appellant indicated that he would be carrying on a body art tattooing business on his own behalf.
4. On 28 October 2013, the Senior Licensing Officer of the first respondent wrote to the appellant to advise him that there was no record to show that he was the registered proprietor of the business name listed in his operator licence application. He was advised that he was required to register his business name if he wanted to carry on business under the "Carnival of Carnage Tattoo Studio" name.
5. In the same letter, the appellant was advised that: 1. his operator licence application form was incomplete in several respects and he was to complete those matters identified; 2. the Close Associate Consent Forms for Jason Campbell and Blake Ryan-Norman were incomplete and should be completed; and 3. no Close Associate Consent Form had been submitted for Amy Louise Cooper and Mathew Leslie Austin, yet they had been identified on his application as staff members on his application.
6. A week later, on 6 November 2013, the appellant's business name was registered with the Australian Securities Investments Commission. At around the same time, the appellant also re-submitted the incomplete forms and submitted a Close Associate Consent Form for Ms Cooper and Mr Austin.
7. At the hearing below, it was the evidence of the appellant that Mr Austin was a friend and that he had known him since he was about 10 years old.
8. Mr Austin had also applied for a tattooist licence in September 2013. He was also able to work as a tattooist under the transitional provisions of the TP Act, until the first respondent determined his application or if that application was withdrawn.
9. On 8 November 2013, the Senior Licensing Officer sent an email to the appellant to inform him that the Close Associate Consent Form for Ms Cooper needed to be signed by him and that he needed to include, in his application Form, on the list of employees the names of Mr Campbell and Mr Ryan-Norman.
10. On 24 March 2015, on the instructions of the appellant, the company "Carnival of Carnage Tattoo Studio Pty Ltd" was incorporated. The directors of the company were the appellant and Mr Austin and of the three shares issued by the company, the appellant held one and Mr Austin held two. On 1 July 2015, the appellant transferred his tattoo parlour to the company.
11. Prior to this transfer, on 12 May 2015, the first respondent wrote to the appellant to inform him that the application of Mr Austin for a tattooist licence had been refused. The letter also informed the appellant of the requirements of ss 8(1) and 11(6) of the TP Act, in that a person could not employ an individual to work as a body Tattooist unless that individual was not the holder of a tattooist licence and that he was required to inform the first respondent, in writing, within seven days, of any change in the information that had been provided in his application. The letter conclude by saying, in bold type, the following: "Therefore, you must advise the Chief Executive in writing to remove the employee as an employed tattooist or proposed employed tattooist from your application for an operator licence. You must also advise if the employee ceases to be a close associate or if he/she continues to be a close associate in a capacity other than as an employee."
12. The appellant's evidence was that he ceased to employ Mr Austin as a tattooist after receiving the abovementioned letter from the first respondent. However, at no time did the appellant inform the respondent that Mr Austin remained a director and shareholder of the company. It was the evidence of the appellant's accountant, Judith Baker, that, as Mr Austin was contesting the decision of the first respondent to refuse his application for a tattooist licence, it was not necessary to remove him as a director and shareholder of the company until that matter was finalised.
13. Following the decision to refuse his application for a tattooist licence, Mr Austin unsuccessfully sought review, by the Tribunal: see Austin v Commissioner of Fair Trading & Commissioner of Police [2015] NSWCATAD 244. In that case, at [75], the Tribunal held that Mr Austin's "criminal record was treated as a "strong prima facie indicator" of lack of fitness and propriety." Mr Austin appealed that decision to the Appeal Panel. On 4 August 2016, the Appeal Panel dismissed Mr Austin's appeal: see Austin v Commissioner of Fair Trading & Commissioner of Police [2015] NSWCATAP 179.
14. Almost one year later, on 17 July 2017, the second respondent made an adverse security report in regard to the appellant's application for an operator licence in that he found that the appellant was not a fit and proper person to be granted a licence and it was not in the public interest to grant him the licence sought. In summary the matters relied on by the second respondent in making this determination about the appellant's fitness and propriety were: 1. the appellant's failure to notify the first respondent of Mr Austin's directorship and shareholding of the company; 2. Mr Austin's apparent ongoing employment at the appellant's Tattoo parlour as his mobile contact number remained on the Facebook page of the appellant's company. The company Facebook page also contained reviews of customers that referred to "Krusty and Blake went above and beyond", when the name "Krusty" was a name used by Mr Austin; 3. the appellant's failure to declare Mr Austin's partner, Karli Norman as a tattooist employed by his company. He also failed to declare Andrew Bolton and Joshua Gilbert as tattooists employed by his company when they were advertised on the company Facebook page as providing body art tattooing services at the parlour; and 4. the appellant's "demonstrated disregard for licensing requirements through his traffic history".
15. In regard to the factor(s) relied on by the second respondent in his determination that it was not in the public interest to grant the appellant with the operator licence, these were largely redacted in the copy of the report provided to the appellant. That is, they were not disclosed to the appellant. However, what was disclosed was the fact that the second respondent had given significant weight to the fact that the applicant had not been convicted of any serious offences in Australian jurisdictions. The second respondent went on recite the following from the Second Reading Speech of Mr Anthony Roberts in regard to the Tattoo Parlours Bill: ""Applicants who are part of this [OMCG] criminal world can and should be refused a licence on public interest grounds." Furthermore, "… if the commissioner has credible evidence of their links to bikie gangs, under this scheme he may refuse or revoke their licence."
16. Two days after the appellant was notified of the decision of the first respondent, on 22 July 2017, the company lodged the relevant documents with the Australian and Securities and Investments Commission notifying the resignation of Mr Austin as a director and shareholder of the company, which took effect from 20 July 2017 (i.e. the same date on which the appellant was notified of the decision of the first respondent).
17. We understand that as at the date of the hearing of the appellant's review application he had complied with all the requirements of the TP Act.

The decision of the Tribunal below

1. We note the appellant was not legally represented at the hearing below.
2. In its reasons for decision, at [12], the Tribunal identified the issues in the matter before it were whether the appellant was (a) a fit and proper person to be granted an operator licence, or (b) whether it would be contrary to the public interest for the licence to be granted, or both. At [113] and [117], the Tribunal concluded as follows: 1. "the evidence in the present case, … does not justify confidently predicting that the applicant will in the future comply with relevant legislation in a conscientious and timely manner. I find that the applicant is not a fit and proper person" (at [113]); and 2. "the applicant's pattern of contraventions means that at present it would be contrary to the public interest for the applicant to be granted an operator licence, and I so find" (at [117]).
3. At [83] to [87], of its reasons for decision, the Tribunal referred to the well known principles in regard to the term "fit and proper person" test as set out in the decisions of Hughes and Vale Pty Ltd v New South Wales (N0 2) [1955] HC 28; (1955) 170 CLR 127, Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 and Saadieth v Director-General Department of Transport [1999] NSWADT 68.
4. At [89] and [90], the Tribunal made the following remarks in regard to the "fit and proper" test in so far as it related to the circumstances before it: "89 Conduct warranting a conclusion that an applicant is not a fit and proper person to hold a particular position need not constitute a deliberate departure from accepted standards, but may portray indifference or ignorance: Pillai v Messiter (No. 2) (1989) 16 NSWLR 197, [200] - [201]. The respondent's position is that the applicant's behaviour has not been truthful or timely but has been at best reckless. 90 The standard of fitness and propriety depends partly on the nature of the activity regulated by the licence. Thus, in Austin v Commissioner of Fair Trading and Commissioner of Police [2016] NSWCATAP 179, [79] the Appeal Panel said, "We accept that the standard of character required of a tattooist does not equate with the high standard of character required of, for example, a legal practitioner"."
5. At [91], the Tribunal noted that the respondents relied on a sizeable number of incidents or omissions by the appellant that were alleged to exhibit a pattern of failure to deal in a "truthful and timely manner with the regulatory authorities". Some of those incidents or omissions the Tribunal went on to say had been credibly explained during the course of the hearing and the Tribunal went on to give examples of these.
6. At [95], the Tribunal listed a collection of matters that had been admitted or insufficiently explained by the appellant which were considered to be relevant to the TP Act regulatory scheme and the appellant's fitness and propriety to be granted an operators licence. These were: "(1) Although Carnival of Carnage had been trading under that name since late 2012, the applicant did not register the business name until late 2013, following a letter from Fair Trading dated 28 October 2013 seeking further information. Carrying on business under an unregistered name (other than the trader's own name) is an offence under s 18 of the Business Names Registration Act 2011 (Cth). In cross-examination Mr McDonald admitted that failure, remarking "Lock me up and throw away the key". (2) Although he had declared Matthew Austin as a tattooist, he did not lodge a close associate notification when Mr Austin became a director and shareholder in the company that took over the business. He stated that Mr Austin had not been a director or shareholder at the date of the application and he did not realize that changes occurring after the date of the application had to be notified. Yet s 11(6) of the PT Act specifically requires notification of any change in details occurring while a decision on an application is pending, and the 24-page application form is emphatic about the need to declare close associate relations (although it does not appear to paraphrase s 11(6) explicitly). (3) Nor did he notify Mr Austin's resignation as a director until after the dismissal of his second appeal against the refusal of his licence in November 2015, although the refusal decision had not been stayed. At that time he asked his accountant to remove Mr Austin as director and shareholder, but she failed to do so and he concedes that he neglected to follow up the matter. (4) After the company had taken over the business, he was required by s 11(3) to appoint a manager but failed to do so. He said he did not know he had to do so. (5) He allowed Karli Ryan-Norman to work as a body piercer at the studio without declaring her as a close associate. He averred that he had been under the impression that the requirement applied only to tattooists, but the application form makes it quite clear that all employees and contractors are covered. (6) He allowed Andrew Bolton to work at the studio without declaring him as a close associate. The evidence shows that Mr Bolton was uncooperative, declining to execute a close associate consent form, and was later dismissed for that reason and for smoking marijuana, but the applicant nevertheless allowed him to work for several months. (7) He failed to notify Fair Trading that Jason Campbell, who he had initially nominated but had left the business at the outset, was no longer working at the parlour until 20 August 2017. (8) The initial application had correctly named John Norman as the owner of the business's premises, but he failed to report the transfer of the property to Parvez & Sons, from whom he acquired a lease from 8 January 2015 to 7 January 2018. He explained that Macquarie Property Partners had declined to sign a close associate form and he had forgotten the new owner's name."
7. The Tribunal then went on to deal with the appellant's history of traffic infringements which resulted in his licence being suspended: "96 … [Since] first being issued with a provisional licence in 1999, he has incurred a total of 19 infringements of New South Wales road rules. Six were for speeding, the most recent being in November 2014, and two were for disobeying traffic lights. In 2000 he was fined $400 for using an unregistered vehicle on a road, a further $400 for using an uninsured motor vehicle and $600 for driving a vehicle while displaying an unauthorized number plate calculated to deceive (exhibit R2, pp 57 - 60). His first violation, for negligent driving, was recorded only three months after he received his provisional licence in August 1999. 97 He has received three licence suspensions, the first in 2000, the second in 2006 and the third in 2007. The 2007 suspension was not implemented, subject to good behaviour conditions. Nevertheless, 11 months later he was fined for another contravention and went on to commit a further five violations between 2009 and 2014. 98 In his statutory declaration the applicant described his traffic record as "some minor traffic offences which I believe most drivers would have after 17 years of driving". In cross-examination he admitted that using number plates calculated to deceive was illegal, but explained that "I'm allowed 12 points". When some other contraventions were referred to, he complained that "You go straight to the negative". He said that the infringements for disobeying red lights were his word against that of the police. When it was put to him that his traffic record showed a pattern of repeat offending, he countered, "There are others with worse records". 99 The applicant's traffic record, and his nonchalant or combative defence of it, does indeed point to a pattern of repetition that inspires little confidence in his readiness to comply in the future with regulatory legislation, including the TP Act. His most recent violation was only three years ago. He asserts that his record consists of minor offences that most drivers would have after 17 years, but most drivers do not have their licences suspended, let alone three times, with the third suspension stayed on good behaviour conditions that he soon proceeded to breach. Saying that there are others with worse records does not assist his case."
8. The appellant's conduct in asking friends and family to post fake reviews and false statements on social media about his business was also of concern to the Tribunal. At [100] and [101], the Tribunal noted that the appellant had admitted to doing so in order to attract more business. The Tribunal noted that the appellant was unaware that such conduct, which occurred in trade and commerce, was likely to infringe ss 18 and 34 of the Australian Consumer Law. The Tribunal concluded that this conduct also reflected "poorly on the applicant's integrity".
9. At [107] and [109] the Tribunal identified a number of factors that were in favour of the appellant. At [107], the Tribunal noted that to the appellant's credit he has no record of non-traffic offences and that there was no evidence to suggest that he has ever been a member of an OMCG, or had any direct association with one. However, it was noted that the appellant had employed Mr Austin as a tattooist and installed him as a director and shareholder of his company, "though knowing him to be linked with an OMCG and that he had worked for an OMCG member at the Naked Gun".
10. At [109] to [111] the Tribunal made the following findings in regard to the appellant's fitness and propriety to be issued with an operators licence: 109 The applicant has some links with the OMCG world, but the evidence suggests that they are not direct or close. He has no non-traffic record of offences, nor has he been the subject of any complaints about failure to implement proper tattooing practices or of improper treatment of clients. On the other hand, he has accumulated numerous breaches of the TP Act, a probable offence under the Business Names Act and contraventions of the Australian Consumer Law involving dishonesty. He has a poor traffic record which also includes one offence of dishonesty. One could therefore conclude that he shows a general disregard for the law. He admits that he made many "mistakes" in relation to the TP Act, which he said were based on misunderstandings, but they involved at least negligence through his failure to inform himself properly of his legal obligations. 110 Further, when asked about his various breaches at the hearing, he attempted to diminish their significance. "Nobody's perfect", he said, but stressed that he now understood the law's requirements. "Don't drag my name through the mud", he replied in answer to a question about one of his violations. "What can I say?.... What do you want me to say?.... You go straight to the negative", he said, as if it was the cross-examiner who was at fault. To another question, he replied, "I made many errors, so it's no use asking" or again, "Why am I being asked about tax?" .In relation to his failure to notify the change in premises ownership, it was put to him that he only corrected his documents when their deficiencies were pointed out to him, to which he replied, "In this case, yes". On the use of false number plates calculated to deceive, his only comment was that he was allowed 12 points. Of his traffic history generally, he commented that there were others with worse records. Asked about his misleading and deceptive posts on social media, he claimed that they had not hurt anybody. He could also be flippant, replying to a question about another contravention, "Lock me up and throw away the key". "111 The law does not require an applicant to profess admiration for the administration of the TP Act, but the applicant's responses suggest a reluctance to accept full responsibility for his past actions and a lack of seriousness about his statutory obligations. The likelihood of any future repetition of past contraventions is one of the major considerations set out in Saadieh in relation to fitness and propriety. The applicant assures the tribunal that he now understands his obligations and will comply with them, but his traffic history shows a sustained pattern of repeated offences, despite licence suspensions. As counsel observed, he also displays a propensity to wait for others to point out what he has done wrong before taking corrective action. He volunteered the comment that his many contraventions showed that he should have undertaken a small business course, but he has not undertaken such a course or commenced one."
11. At [114] to [117], the Tribunal dealt with the public interest test. At [115], the Tribunal said that the public interest principles must be applied: "115 … [i]n light of the particular legislative purpose and context of the TP Act, which is to rid the tattoo industry of OMCGs and their influence, and of other criminal elements. The legislative scheme depends for its efficacy on the conscientious and timely documentation of "close associates", as defined, working in tattoo parlours."
12. At [117] the Tribunal added that "the TP Act seeks to remove not only those associated with OMCGs, but also those who cannot be relied upon to abide by the law".
13. The Tribunal's findings in regard to the appellant are set out at [116] as follows: "116 In the present case the applicant has demonstrated a negligent attitude to the TP Act scheme by failing to ensure the disclosure of close associates, one of whom, Matthew Austin, had been refused a tattooist licence partly because of his extensive criminal history. He has committed numerous breaches of business names, consumer protection and motor traffic legislation, including violations involving dishonesty. In particular, he has admitted lying on social media that Joshua Gilbert was working at the business and using faked customer reviews in order to gain business. His history of repeated traffic infringements extending over 17 years, and despite multiple licence suspensions, suggests a limited ability to learn from his mistakes."
14. At [118], the Tribunal set out its conclusions as follows: "118 The applicant's record is not such as to preclude the possibility that he could make a successful application for an operator licence in the future if he can produce sufficient evidence to show that he can be depended on to comply fully with the regulatory scheme. At present, however, he does not meet the fitness and propriety and public interest tests. The decision under review must therefore be affirmed."
15. As we have noted, on the basis of its findings, the Tribunal affirmed the decision of the first respondent.

Grounds of Appeal

1. There is essentially only one ground of appeal that was pressed at the hearing of the appellants appeal. This ground related to the fit and proper person test and its application by the Tribunal to the evidence before it. However, as the appellant had arguably raised a possible error of law (denial of procedural fairness) in his initial Notice of Appeal we have briefly dealt with this also.

Fit and proper person test

1. At the hearing of the appeal, Mr Maspero explained that the appellant's challenge to the fit and proper person test was a challenge to the findings made by the Tribunal below and not the legal principles to which the Tribunal referred. Mr Maspero also agreed at the hearing that to succeed in his appeal on this ground the appellant would need to be granted leave to appeal by the Appeal Panel.
2. In summary, in this ground of appeal, the appellant contended that the Tribunal had: 1. applied a higher standard of fitness and propriety for the appellant than that which has been applied by Courts and Tribunals in other regulated industries and professions; 2. failed to consider a relevant factor, namely the impact that the decision would have on the applicant if not set aside; 3. incorrectly referred to "Outlaw Motorcycle Gangs" when there is no such thing; 4. gave too much weight to the appellant's failure to register his business name, a failure to inform the first respondent of others who worked in his business and a failure to inform the first respondent that Mr Austin was a director and shareholder of his company; and 5. took into account an irrelevant factors such as possible breaches of the Australian Consumer Law by asking his family and friends to post on the company's Facebook page customer review which he knew were not true.

(a) Ground of appeal - too high a standard of fitness and propriety was applied

1. The appellant accepted that the Tribunal correctly set out the case law as to how the "fit and proper person" test is to be applied to the TP Act. It is useful to briefly summarise these as set out by the Tribunal in its reasons of decision: 1. the very purpose of the words "fit and proper" is to give the widest scope for judgment and for rejection on that ground: Hughes and Vale (supra), at 156-157; 2. "Fit" with respect to an office is said to involve honesty, knowledge and ability. And when enquiring whether a person is a fit and proper person to hold the licence applied for … it ought not to be confined to the person's character as "it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend on its own facts" (Hughes and Vale (supra)); 3. "The expression "fit and proper" person, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities" (Bond (supra), at 380); 4. Depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed it will not occur, or whether the general community will have confidence that it will not occur (Bond (supra); 5. In certain contexts, character (because it provides indication of likely future conduct) may be sufficient to ground a finding that person is not fit and proper to undertake the activities in question (Bond (supra)). 6. The expression meant that an applicant needed to show not only that he has the requisite knowledge of the duties and responsibilities of the holder of the particular licence but also that he is possessed of sufficient moral integrity and rectitude to be accredited to the public as a person to be entrusted with the work the subject of the licence (Sobey (supra).
2. The appellant pointed out that in his case he has no criminal conviction and is not and has not been a member of or associated with any motorcycle gang or a criminal gang. As we have noted, at [107], the Tribunal accepted that, to his credit, there was no record of the appellant having committed a non-traffic offence. That is, the Tribunal accepted that the appellant had no criminal record. It also accepted that the appellant had never been a member of an OMCG, or that he had any direct association with one.
3. It was the appellant's contention, as he had contended before the Tribunal below, that in the absence of any criminal convictions or association with an OMCG he, unlike the applicants in McCurday v Commissioner of Fair Trading [2017] NSWCATAD 35 and Deakin v Commissioner of Fair Trading and Commissioner of Police [2016] NSWCATAD 2, did not and had not at any time presented as being a danger to the public, yet these were applicants who had been granted a licence under the TP Act.
4. However, as pointed out in the abovementioned cases, a person's fitness and propriety must be considered in the context of the regulated activity (i.e. its purpose and objective) and the circumstances relevant to the person making the application (i.e. each case depends on its own facts). Factors other than a person's criminal record may be relevant to this issue. As noted by the Tribunal, this includes a person's readiness, in future, to comply with his/her obligations under the regulatory scheme if he/she were to be granted a licence under that scheme. In our opinion the Tribunal was correct in this approach, as the purpose and object of the TP Act can only be met if holders of an operator licence meet their obligations under that Act. An essential obligation being that the holder of an operator licence notifies the first respondent, within the prescribed time, of any close associates and any changes to the details of such associates. Given the broader object and purpose of the TP Act, a single failure to notify the first respondent of the details of a close associate, or changes in the details of a close associate may be sufficient to find that the person is not a fit and proper person to be the holder of an operator licence under that Act. It will depend on the circumstances. The same applies where there are multiple failures, as in this case.
5. What is apparent from the legislative scheme is that its effectiveness in achieving its overall objectives is largely dependent on whether those who are granted an operator licence can be trusted to know what their obligations are under the TP Act and to comply with those obligations within the time prescribed. This, the Tribunal found the appellant had failed to do. The Tribunal also appears to have been concerned about the appellant's apparent lack of interest in what was required of him as the holder of an operator licence.
6. A person's failure to comply with his/her obligations under any other legislative scheme may also be relevant. Again, it depends on the circumstances and the activity for which the licence is being sought.
7. In this regard, during oral submissions, the appellant contended that, as his traffic offences were 10 years old, he could not see how the Tribunal could have found, at [99], that his "traffic record, and his nonchalant or combative defence of it, does indeed point to a pattern of repetition that inspires little confidence in his readiness to comply in the future with regulatory legislation, including the TP Act."
8. In our opinion, the appellant has not identified an appealable error in the Tribunal's conclusion. While minds might differ about the appellant's traffic record and whether it pointed to a pattern of repetition, in our opinion, the finding of the Tribunal was open to it on the evidence. We also note that this was not the only finding, or even the most significant finding, on which the Tribunal concluded that the appellant had manifested a general disregard for the law, in particular the obligations of an operator licence holder under the TP Act.
9. Accordingly, we find that this alleged error has not been established.

(b) Ground of appeal - failure to consider a relevant factor

1. The appellant contended that the Tribunal failed to take into account the hardship the decision of the first respondent had on him.
2. In regard to any financial hardship or disadvantage, this is not relevant to the assessment of a person's fitness and propriety: see Austin [2016] NSWCATAP 179, at [73]. We note the Tribunal below made a similar finding at [104]. The Tribunal also said that it was not altogether obvious how financial hardship could result from licence refusal in the appellant's case. The Tribunal went on to note that the appellant had admitted in cross-examination that the parlour had operated at a loss in all but one year of its existence and no attempt was made to explain why closing the parlour down would deal the appellant with a crippling financial blow.
3. Accordingly, the appellant has not established this ground of appeal
4. We add that whilst it may seem a hard outcome for the appellant to have his 2013 application for an operator licence refused after having operated a tattoo parlour for more than four years, without any customer complaint, this is not the test. We also note that the Tribunal took into account the fact that in the years the appellant had been operating a tattoo parlour no complaints about failing to implement proper tattooing practices or of improper treatment of clients: see at [109].

(c) Ground of appeal - Incorrect referral to OMCGs by the Tribunal

1. We accept, as contended by the appellant, that no evidence was led or assertion made in the material before the Tribunal below that Mr Austin or any close associates of the appellant were members of a declared criminal organisation within the meaning of the CCOC Act.
2. However, we do not accept that the Tribunal's use of the term "outlaw motorcycle gang", or "OMCG" was used in that context. First, the Tribunal made no reference to the CCOC Act. As we have noted, no organisation has been declared under that Act.
3. In our opinion, the Tribunal used the term "outlaw motorcycle gang", or "OMCG" in the context it is commonly used to describe a motorcycle gang that is perceived to engage in criminal activities. In this regard, we note that in its reasons for decision, at [23], the Tribunal made reference to the appellant's evidence during cross-examination that he understood the aim of the TP Act was to exclude criminal elements from the tattoo industry and that he supported this objective. The appellant also appears to have understood what was meant by the use of the words "Outlaw motorcycle gangs (OMCG's)" in that they were "part of that criminal element, and tattoo parlours were rumoured to be operated by some persons associated with them". It was the appellant's evidence that he was not a member of an OMCG himself.
4. From our reading of the transcript of the hearing before the Tribunal, the appellant accepted that the term "outlaw motorcycle gang", or "OMCG" was being used in the context it is generally used and not in the context of an organisation declared under the CCOC Act. We also note that the appellant has made no complaint about the following remarks of the Tribunal at [107]: "To the applicant's credit, he has no record of non-traffic offences and there is no evidence to suggest that he has ever been a member of an OMCG, or had any direct association with one. He did, however, employ Mr Austin as a tattooist (describing him at one point as his "business partner") and installed him as a director and shareholder of the company, though knowing him to be linked with an OMCG and that he had worked for an OMCG member at the Naked Gun."
5. Accordingly, the appellant has failed to establish an error by the Tribunal in this regard.

(d) Ground of appeal - Too much weight given to the appellant's failure to register the business name and to notify the first respondent of other workers and Mr Austin's directorship and shareholding of the company

1. In our opinion, this ground of appeal is misconceived.
2. When the Tribunal's reasons for decision are read as a whole, it is evident that whilst the failure of the appellant to register his business name, and the failure to notify the first respondent of details of his close associates or changes in the details of his close associates were of significance it was the totality of the appellant's conduct that the Tribunal acted upon. When regard is had to the totality of the conduct, in our opinion, the Tribunal's conclusion as to fitness and propriety was reasonably open to it. In this regard, we note that the Tribunal took account of the repeated failure to comply with legal requirements and the adverse impact this had on the likelihood that he would in the future continue to breach his obligations under the TP Act.
3. The Tribunal found that the appellant's past conduct had demonstrated a "general disregard for the law": see at [109]. The Tribunal appears to have accepted that the failures were not deliberate, but found that the appellant had been negligent in that he made no enquiry as to what was required of him. Instead he responded when his failures were pointed out to him.
4. The Tribunal went on to consider the various responses the appellant had given to his past failures and transgressions and as we have noted, at [111] the Tribunal found that his responses "suggested a reluctance to accept full responsibility for his past actions and a lack of seriousness about his statutory obligations". It was on this basis the Tribunal found that it could not be confident that the appellant would not continue to breach his obligations under the TP Act in the future.
5. Accordingly, we find this ground of appeal has not been established.

(e) Ground of appeal - Took into account an irrelevant factor

1. The appellant contended that the Tribunal's finding of possible breaches by the appellant of the Australian Consumer Law was an irrelevant factor to the issue of whether the appellant was a fit and proper person to be granted an operator licence. This finding related to the fake reviews and false statements on web site of the appellant's tattoo parlour.
2. In our opinion, this was not an irrelevant factor. The appellant readily acknowledged that he had asked his family and friends to post customer reviews on the company's Facebook which he knew were not true. This was conduct undertaken by the appellant in the course of his licenced activity and hence it was a relevant factor to be taken into account, and it was for the Tribunal to determine what weight it would give to this factor.
3. Again, the appellant has failed to establish that the Tribunal erred in taking into account the false Accordingly, we are not satisfied that the appellant has established this ground of appeal.

Procedural fairness

1. The Tribunal is subject to the rules of natural justice, which are commonly referred to as the rules of procedural fairness: see Civil and Administrative Tribunal Act, s 38(2). There are basically two aspects to these rules, namely an unbiased decision maker and a right to be heard. The latter is encapsulated in s 38(5)(c) of the Civil and Administrative Tribunal Act, which provides that the Tribunal is to ensure that the parties to proceedings before it have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.
2. The respondent conceded that a denial of procedural fairness constitutes an error of law. However, it is submitted that in this case there was no error of law.
3. Having considered the transcript of the hearing below, we agree with the respondent that there is no evidence to support the appellant's contention that he was not given a reasonable opportunity to be heard or have his submissions considered by the Tribunal.
4. While the appellant was not legally represented, prior to the hearing of the matter he was provided with the material relied on by the first respondent, including a copy of the adverse security report of the second respondent. Sections of that report were redacted. These redactions primarily related to the second respondent's assessment of the public interest. However, the remainder of the report was provided to the appellant, which included those factors the second respondent had taken into account in assessing the appellant's fitness and propriety to be granted an operator licence. The appellant was also given the opportunity to file and serve material on which he sought to rely, including any material in response to that filed and served by the respondents.
5. As pointed out by the respondent, the appellant did file and serve material prior to the hearing of his application below and he has not identified what material, if any, he was prevented from filing and serving.
6. In regard to the hearing of the appellant's application, it is evident from the transcript of that hearing that a large portion of time was taken up with the appellant giving his evidence in chief and his cross-examination by counsel for the respondent. The appellant has not pointed to any section of the transcript where he was unable to put his case to the Tribunal, either because he had no prior notice of the issue he was being asked questions about or because of time constraints. On the contrary, the Tribunal did ask the appellant at the conclusion of the hearing: "Anything else we need to deal with today". The appellant responded: "Not at all". Prior to this interchange, the appellant had also thanked the Tribunal Member for hearing him that day.
7. Accordingly, in our opinion even if this ground of appeal had been pressed it would not have succeeded.

Conclusion

1. For the reasons set out above, we are not satisfied that the appellant has established an appealable error by the Tribunal. That is, we are not satisfied that the Tribunal erred in law, or its approach in determining, on the material before it and the applicable law, whether the appellant, as at the date of hearing, was a fit and proper person to be issued with and operator licence under the TP Act. In our opinion the findings made by the Tribunal were open to it on the material before it and we note, based on those findings the Tribunal also concluded that it was not in the public interest to grant the appellant with and operator licence.
2. In light of our finding that the appellant has failed to establish any appealable error in the Tribunal's decision, or reasons for decision, the appropriate order is to refuse the appellant's application for leave to appeal, to otherwise dismiss the appeal and make orders lifting the stay order made on 7 December 2018.
3. Finally, we note the Tribunal's concluding remarks in its reasons for decision in that the appellant's "record is not such as to preclude the possibility that he could make a successful application for an operator licence in the future if he can produce sufficient evidence to show that he can be depended on to comply fully with the regulatory scheme" under the TP Act.

Orders 1. Appellant's application for leave to appeal is refused. 2. The appeal is dismissed. 3. The stay of the decision of the first respondent, made on 20 July 2017, to refuse the appellant's application for an operator licence is lifted within 21 days of this decision. 4. The recording and transcript of the confidential hearing held on 2 March 2018 are not to be published or released to the applicant.

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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: 09 July 2018