Mielczarek v Commissioner for Fair Trading

REASONS FOR DECISION

1. The appellant, Mielczarek, has appealed the decision delivered by the Tribunal on 22 February 2016: see Mielczarek v Commissioner of Police [2016] NSWCATAD 34. By such decision the Tribunal affirmed a decision of a delegate of the Commissioner for Fair Trading. By such decision the second respondent refused to grant the appellant a tattoo licence under the Tattoo Parlours Act 2012 (TP Act). The appeal has not yet been heard but was fixed for hearing.
2. The internal appeal of the appellant has been made pursuant to section 80 of the Civil and Administrative Tribunal Act 2013 No 2 (NCAT Act). Such section enables an appeal to be made to an Appeal Panel, in respect of a decision other than an interlocutory decision, as of right on any question of law, or with leave of the appeal panel or on any other grounds. The grounds nominated in the notice of appeal raise a question of law for determination and accordingly the appellant brings this appeal as of right.
3. The appellant has now applied to the Tribunal to adduce fresh evidence on the hearing of the appeal. Such application may be made under s 80(3) of the NCAT Act which provides: (3) The Appeal Panel may: (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances.
4. In determining an internal appeal, broad powers are provided to the Appeal Panel is set out in section 81(1) and include the allowance or dismissal of the appeal, the confirmation, affirmation or variation of the decision under review, the quashing or setting aside of the decision, the setting aside and substituting another decision or remitting the whole matter to be reconsidered by the Tribunal. Furthermore, by virtue of the power invested in the Appeal Panel by section 81(2), the Appeal Panel may "exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when varying, or making a decision in substitution for, the decision under appeal". It follows that the Appeal Panel may, if it thinks appropriate, allow fresh evidence to be given on appeal under section 80(3)(b).
5. Before the Tribunal, the appellant was required to establish that the delegate's decision was erroneous with respect to two findings. The delegate found that the appellant was not a fit and proper person to be granted a licence, and secondly that it would be contrary to the public interest for a licence to be granted to him. The Tribunal upheld the appellant's claim that he was a fit and proper person to hold a licence notwithstanding his membership of the Rebels Motorcycle Club (the Rebels). However, the Tribunal concluded that, despite such finding, the decision of the delegate that it was not in the public interest for a licence to be granted to the appellant, should be upheld. Accordingly the Tribunal determined that the decision to refuse the appellant a tattooist's licence should be affirmed.
6. The delegate determined to refuse to issue such licence to the appellant because of his membership with the Rebels, and of various criminal activities which were associated with that group in the Picton area where the appellant had close contact, even though there was no evidence that the appellant had himself engaged in any criminal activity. Another tattooed shop in a nearby town, Tahmoor, was known to be operated by the Rebels until the business had failed.
7. The new evidence which the appellant seeks to adduce relates to one fact, namely that since the decision was made by the Tribunal, the appellant has resigned from his membership of the Rebels. The respondents oppose the application, submitting that the membership by the appellant of the Rebels was of significance to the Tribunal in making its decision; that the hearing was conducted on the basis of the continued membership of the appellant with the Rebels and that, in effect, the recent termination of membership has arisen solely to enable submissions to be made before the Appeal Panel that the matter of concern to the Tribunal, namely membership of the Rebels, is no longer a factor for consideration. The respondents also submit that if such evidence were allowed, it could entirely alter the hearing of the appeal and may necessitate a rehearing.
8. It is necessary to consider the decision under review to determine whether in fact the membership of the appellant of the Rebels was a matter of significance in the making of the Tribunal's decision. In Building Professionals Board v Hans (GD) [2008] NSWADTAP 13 the appeal panel considered the principles governing the requirement for a grant of leave to be made in respect of admission of further evidence in a hearing at first instance before a tribunal. At [51] the decision refers to the observations of the Appeal Panel Law Society v Young (No2)(LSD) [2001] NSWADTAP 19, in respect of a decision of the High Court of Australia in CDJ v VAJ (1998) 197 CLR 172. In that decision, the majority (McHugh, Gummow and Callinan JJ) considered the basis for the exercise of discretion in the context that the purpose of the provision in question allowing for fresh evidence existed to facilitate the correction of an error where such error probably occurred because the further evidence was not before the primary judge. Their Honours said at [149]: "Because that is so, the proper exercise of the discretion in the circumstances of this case required the Full Court to be affirmatively satisfied of two things. The first was that, given the findings of the trial judge, the further evidence if tended before him was likely to have produced a different result. It was not enough that the Full Court thought that, upon the whole of the evidence including the further evidence, and other judge might make a different order. The second was that the best interests of the children required a rehearing of the husband's application…"
9. In Building Professionals Board at [53-54] the Appeal Panel, adopting the above observations, said: "53 First, the provisions regarding internal appeals in Part 1 of Chapter 7 of the ADT Act sufficiently imply, without stating expressly, that an Appeal Panel has power to grant leave of this nature, whether or not it has given consideration to the question whether the decision under appeal contains errors of law. A specific authority for this is to be found in Law Society v Young (No2) at [27 - 30]. 54 Secondly, If the Appeal Panel is to exercise its discretion in favour of the party applying for leave, it must be "affirmatively satisfied" that, having regard to the findings of the Tribunal at first instance, the further evidence, if tended at the hearing conducted by the Tribunal was "likely to have produced a different result". This criterion appears in the paragraph just quoted from CDJ v VAJ. The applicant for leave does not have to show that if the evidence had been put before the Tribunal, an "opposite result would have been produced" or it would have been "unreasonable to suppose the contrary" (see the passage from Council of the City of Greater Wollongong v Cowan that the Appeal Panel in Young quoted at [21]). But it is not enough merely to show that the further evidence is "useful", or that its admission would have given rise to a "real chance" that the tribunal would have reached a different decision (see CDJ v VAJ at [151]; Young at [31]).
10. The decision of Building Professionals Board was not made under the NCAT Act, which contains express power under section 80(3) to allow fresh evidence. The pivotal issue in the present circumstances is whether the Appeal Panel should exercise its discretion in permitting the appellant to raise a new evidence confined to the fact that he has now ceased being a member of the Rebels. In order to exercise its discretion in in favour of the grant to permit fresh evidence, based upon the authority of the High Court quoted above, it is necessary for the Appeal Panel to be satisfied that, had such evidence been available at the hearing before the Tribunal, such fresh evidence was likely to have produced a different result. This in turn requires a consideration of the decision under review on the aspect of the appellant's membership of the Rebels.
11. The Tribunal Member, when considering whether the appellant was a fit and proper person to be granted a tattooist's licence, observed the appellant's claim that he had not resigned as a chapter member of the Rebels, resulted from the appellant's concern that if he did so he could be injured, or his family could be injured, since that was the fate of another member who resigned from the club. He had stated, in answer to questions asked of him, whether he had a difficulty in leaving the club, and replied that that would cause no difficulty except he could not predict how other club members might behave towards him. The appellant submitted that if he were not a member of the Rebels, there should be no issue concerning him being issued the licence.
12. In his consideration of the evidence and submissions, the Tribunal Member made the following observations: that the appellant "remains a member to this day" although the appellant maintain that it is "finished" as the organisation that he had joined; that the "correct position" appeared to be that membership of an organisation such as the Rebels was a major factor in the consideration of fitness and propriety but that other factors such as the appellant's lack of criminal history and his other known activities could prevent or alternatively reinforce the inference of a lack of fitness or propriety; that the appellant portrayed his actions as being "attempts to distance himself" from the Rebels' criminal activities.
13. Significantly the Tribunal Member observed: "That does not, of course, alter the fact that his mere membership of the Rebels was likely to bring him under adverse notice and stands as a weighty factor against his case".
14. As to the issue of public interest, the Tribunal observed at [163] of the decision: "The first fact relevant to the public interest is that the applicant [appellant] is a senior member (whether or not he has ever held a senior office) of an organisation that has a long history of involvement in violent crime".
15. The Tribunal noted that it did not appear that the appellant held a senior office in the club and the appellant may have been regarded as a de facto president of the chapter. Whilst observing that the president of such a "modestly-sized" branch could scarcely be regarded as holding a senior office, the appellant had enjoyed a position of prominence by virtue of his standing as a successful businessman. Significantly the Tribunal observed at [167]: "The applicant's continuing association, however fragmentary it might be, adds to the public risk presented by the organisation by making him a possible target of competing factions".
16. From these extracts of the decision under appeal, it is apparent that the continued membership of the appellant of the Rebels was a factor in the Tribunal Member's decision. However, the Tribunal Member accepted that whilst the appellant's membership was "fragmentary", it was only a factor, together with other factors which were of concern in respect of the public interest.
17. The respondents submit that the fact of the cessation of membership, in addition to being a cynical attempt to seek an advantage at the appeal, should not be allowed because of the manner in which the appellant has conducted the proceedings from the outset. The respondents maintain that it was in the appellants power to cease membership prior to the Tribunal hearing; that he elected not to do so; that as a result the Tribunal proceeded and determine the matter and that in accordance with the principles established by the High Court of Australia in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175, the appellant should not now be permitted to adduce the new evidence.
18. In Building Professionals Board v Hans(GD) [2008] NSWADTAP 13, the Appeal Panel considered at length the principles concerning admission of new evidence (see pars [51] to [57]). Such principles were applied by the Appeal Panel in BCL v NSW Trustee and Guardian [2014] NSWCATAP 18 at [26] to [28]. In this decision, the Appeal Panel affirmed that new evidence should be admitted only if it were "likely" to have produced a different result. Further, the Appeal Panel referred to the principle that on appeal, the Appeal Panel must examine the decision at first instance, and that it is not relevant to consider "whether the circumstances have changed since that time": see [28].
19. Having considered the relevant principles, the Appeal Panel cannot conclude that the new evidence, if admitted, was such that "it was likely" that a different result would have been determined in respect of the issue of "public interest". The Tribunal Member took into account the "fragmented" membership of the appellant in the Rebels, which suggests that membership per se was not a critical factor in the determination. At its highest, it might have been possible that a different result would have been produced. But this is insufficient to satisfy the strict requirement for the admission of new evidence.
20. The Appeal Panel further finds that it lay within the power of the appellant to cease his membership of the Rebels prior to the Tribunal hearing. He elected not to do so: the appellant is bound by the manner in which he conducts his claim: see Aon Risk Services Australia. The Appeal Panel concurs with the submission of the respondent that the admission of the new evidence could result in the whole appeal being re-determined on a different factual basis to that considered by the Tribunal.
21. For the above reasons the Appeal Panel orders that the application that fresh evidence be admitted at the hearing of this appeal be refused.

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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: 29 May 2018