Moore v Commissioner for Fair Trading and Commissioner of Police

Evidence

1. The Applicant relies on his own evidence and references provided in support of his application. These include a statement by Steven Blackburne, a friend who has known the Applicant for around twenty years, and a statement by Daniel Sauer, the owner/operator of a neighbouring business at Long Jetty for two years and who has known the Applicant as his neighbour. Each has some knowledge of the Applicant's criminal record and spoke highly of the Applicant.
2. The Applicant provided an affidavit, attended the hearing and was cross-examined.
3. The Respondents rely on non-confidential material as well as criminal intelligence information filed on a confidential basis and which has not been disclosed to the Applicant.
4. Pursuant to section 49(2) of the Civil and Administrative Tribunal Act 2013 ("the NCAT Act") a confidential hearing may be conducted wholly or partly in private; and pursuant to section 64 of the NCAT Act and/or section 27(4)(b) of the Act, evidence of any Criminal Information and submissions may be heard in the absence of the of the public, the Applicant and the Applicant's representative.
5. To the extent that was necessary I made orders under these sections.
6. The non-confidential material includes the Commissioner's redacted adverse security determination, the Applicant's criminal history and the Police Facts Sheet dated 3 June 2014. This material has been disclosed to the Applicant.
7. The Commissioner also relies on the evidence of Mr Stanislaw Jurowski and Ms Maria Corbo. Each provided an Affidavit, attended the hearing and was cross-examined.
8. Mr Jurowski is the Acting Co-ordinator of Business Licensing at NSW Fair Trading. His duties and responsibilities include overseeing activities of the Business Licensing Unit which involve processing of licence applications under the Act.
9. His evidence is that the registered owner of the business name "Great Tatts Long Jetty" is Mr James Walsh. Mr Walsh made an application for an operator licence pursuant to section 11 of the Act on 2 October 2013. Mr Walsh's application for an operator licence has not yet been determined. As Mr Walsh did not lodge his application for an operator licence before 1 October 2013 he is subject to sections 6 and 8 Act and is required to hold a licence. Mr Walsh does not have an operator licence to carry on a body art tattooing business.
10. Mr Jurowski's evidence is that he found no record of the Applicant making an application for an operator licence the Act.
11. Ms Corbo is Senior Assessment Officer with New South Wales Police whose duties and responsibilities include assessing and reviewing Tattooist Licence and Tattoo Operator Licence applications made under the Act. Her evidence is that she conducted a search of Facebook for "Great Tatts Long Jetty" where she found images and posts relating to the work of the Applicant as a tattooist. She identified posts relating to the Applicants work between 19 September 2015 and 25 November 2015.
12. She conceded that there had been some teething problems with the introduction of the Act but said that those problems mainly concern staffing issues and the time taken to process applications. In relation to this matter her role has been to check the Applicant's post refusal activity.

Applicant's criminal record

1. The Applicant has a criminal record comprising numerous offences. Ms Rao summarised the record and the evidence about those offences as follows: a. 3 offences of larceny on 29 February 2012, contrary to section 117 of the Crimes Act. The Applicant was apprehended whilst systematically smashing in car windows with a wooden stake and stealing personal possessions. He appears to have damaged no fewer than 4 cars. There is no indication that he ever compensated the victims for the damage done to their cars and property. He was evidently heavily intoxicated at the time. b. driving with middle range concentration of alcohol in the early hours of 28 May 2011, following a lengthy drinking session from the previous day 11.30pm until 3.35am. c. driving with an illicit drug present in oral fluid, namely methamphetamines. A further sample also confirmed the use of the drug ecstasy. The Applicant then admitted to having recently taken "goey", a street name for methamphetamine. d. driving furiously or recklessly in a dangerous manner or speed dangerous. The Applicant was driving at an extremely high speed in a residential area, with a number of children and adults walking in the immediate vicinity. The Applicant was also driving a vehicle that was unregistered and uninsured. In dealings with Police, the Applicant claimed that he didn't realise that his driver's licence had expired. e. at least 10 traffic related offences in the period 2011 - 2012, including not giving particulars after a crash, and using unregistered and uninsured vehicles.

The Adverse Security Determination

1. The Applicant has been provided with the adverse security determination in a redacted form. An unredacted copy of that document was provided to the Tribunal on a confidential basis but subsequently released to the Applicant.
2. In addition to the information referred to above, the adverse security determination also included COPS Event references in relation to the Applicant's use of cannabis and amphetamines and related cautions. While I accept the Respondent's submission that the Applicant has not provided any independent evidence in support of his assertion that he no longer uses these substances, these COPS Event references do not cause me serious concern because of the time that has passed since the incidents and the lack of recent information within the confidential material that suggests continued use of these substances.

The Applicant's evidence

1. The Applicant admits that he has made some very poor decisions in his life but says that he has put those behind him and believes that he is now living a clean and productive life and wants to do well in business. He says that he attended Alcoholics Anonymous for six months, hardly drinks at all, does not use drugs and has not offended for over three years. He believes that his attendance at Alcoholics Anonymous enabled his to get his use of alcohol under control.
2. He regards himself as having settled down both personally and professionally and says that he is not a risk to any of his clients and considers himself a fit and proper person to hold a tattooist licence.
3. He stated that the last time he was charged was 29 February 2012 and sentenced 11 April 2012 in Wyong Local Court. As a result of the sentence he was ordered to complete community service of 50 hours and incurred costs. He completed the community service hours and paid the costs.
4. He said that after being sentenced on the last occasion he took complete stock of his life and realised that if he did not change his ways he was going to end up in very serious trouble and potentially in custody. This scared him as an Aboriginal person as he is very aware of the high deaths in custody that Aboriginal people often suffer. He realised that alcohol had been a problem for him for some time and he decided to change his ways.
5. The Applicant conceded that he had continued to perform body art tattooing procedures after he was notified that his licence application had been refused. He said that until he received legal advice on 19 November 2015 he thought he could continue to perform the work.
6. The Applicant's evidence is that Police attended the parlour twice in the year 2014 for the purposes of assessing the goings on of the tattoo parlour. On one occasion and without notice up to ten Police officers attended on the parlour. The Police officers searched the premises and nothing untoward was found. The tattoo parlour was allowed to continue to operate.
7. He said that he has no affiliation with any outlaw motor cycle gangs or any other criminal syndicates. He has not been charged with anything or committed any offences since his last conviction. He believes that since that time he has led the life of a good community member and citizen.

Submissions

1. Each of the parties made written submissions.

The Commissioner's submissions

1. The Commissioner contends that the Tribunal should find that the Applicant is not a fit and proper person to hold the licence and should affirm the decision not to grant the licence.
2. The Commissioner submits that the Applicant's offences are not trivial matters that can be dismissed. They are relatively recent and display serious disregard for the safety of other people, alcohol and illicit drug abuse, and brutal property damage.
3. The Applicant's driver's licence was repeatedly suspended between 2008 -2010 due to non-payment of fines. He was eventually declared a habitual offender, and had his licence revoked on 11 April 2012 for a period of 5 years.
4. Ms Rao submitted that the Applicant's criminal record is a prima facie indicator of lack of fitness and propriety. The Applicant claims to have achieved a level of rehabilitation since his last offending. However, Ms Rao submitted that he faces a high threshold to demonstrate that he is no longer unfit.
5. He has provided no professional and independent expert evaluation of his psychological condition or his drug use, nor any expert evidence regarding the likelihood of reoffending or further offending from a principled and comprehensive standpoint.
6. Further, Ms Rao submitted that the evidence indicates that there are current causes for concern as to the Applicant's fitness and propriety, and indications that he has a continuing disregard for, or disinterest in the laws that apply to the tattoo industry. She points to the Applicant's failure to attend stay hearings on two occasions and the Tattoo procedures log and Facebook page of "Great Tatts LongJetty" which indicates that the Applicant has continued performing body art tattoo procedures at the parlour in the period after the refusal of his tattooist licence application.
7. She submitted that the transcript of the directions hearing on 27 October 2015 makes it plain that the Applicant had been told that he could not work without first obtaining a stay, and that in order to do so, he would have to attend the hearing at 11am the following day, either by phone or in person. Ms Rao further noted that during discussion in regard to when the stay hearing could be conducted, the Applicant had commented that if he couldn't work, then he would be available "at any time" for the stay hearing.
8. She submitted that these transcripts of hearing tend to support the submission put on behalf of the Commissioner, that, at least by 27 October 2015, the applicant was well aware that he could not work unless he obtained a stay, and that his contrary testimony on this point was unsatisfactory and appeared to be evasive.
9. In relation to the Applicant's evidence of Police searches of the tattoo parlour, Ms Roa submitted that this evidence indicates that the parlour was operating when it was not licenced.
10. The Commissioner notes that contrary to the Applicant's claims, the tattoo parlour was and has been operating without a licence, and was in fact issued with a penalty notice.
11. In summary, the Commissioner submits that the Tribunal cannot be satisfied that the Applicant is a fit and proper person to hold a tattooist licence, and accordingly, the decision under review should be affirmed.

The Applicant's submissions

1. Mr Wright, solicitor for the Applicant, submitted that none of the offences to which the Applicant was sentenced are of violent nature and are not connected in any way with organised crime or outlaw motor cycle gangs and do not present as significant matters of concern when considering the suitability of the application for a tattoo licence at present. The evidence shows that he has committed ad hoc crimes on occasions where social factors were at play. These issues have now been addressed and are under control.
2. It is submitted that a reasonable person attending a tattoo parlour to be tattooed by the Applicant would be unaffected by knowing the driving offence matters including drink driving and the larceny matter relied upon by the Commissioner. It is further submitted that the administrative requirements on tattooists are minimal and appear limited to recording the date a procedure is performed, the name and licence number of the tattooist and the amount charged and payment method. The facts of a history of non-compliance with primarily traffic legislation, which is no longer a fact as the Applicant has not driven a motor vehicle for a number of years, does not demonstrate that the Applicant will not comply with the relatively simple administrative obligations he has under the Act.
3. Mr Wright submitted that the approach taken in Dyas v Director-General Fair Trading and Commissioner of Police should be preferred to a number of other decisions of this Tribunal. In Dyas I set aside the decision to refuse a tattooist licence.
4. The Dyas case factually involved the applicant's criminal history and traffic record which stretched from 1977 to 2011 and a long history of drug and alcohol abuse. The history included convictions for assault occasioning actual bodily harm, demanding property by force within intent to steal, break, enter and steal, and convictions for the possession of prohibited drugs. Bail conditions were breached on four separate occasions and so on.
5. The Applicant had rehabilitated and none of the offences were in relation to or associated with conducting the business of a tattooist. It was determined that the offences should not prevent the Applicant obtaining the licence. This was because of a combination of the nature of the offences, the time that had passed since the offences were committed, the Applicant's acknowledgment of his past and the efforts that he has made to change his lifestyle.
6. Mr Wright submitted that the Applicant's improper conduct is relatively minor in consideration alongside that in Dyas. As to whether it is likely to occur again, there has been a passage of time of 3 - 4 years; the Applicant acknowledges his past wrongdoings and has made efforts to change his lifestyle. As to whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur it is submitted that the Applicant has worked on the Central Coast as a tattooist for a number of years and in the current parlour. His next door neighbouring business owner speaks positively concerning the Applicant.
7. Mr Wright submitted that the cases of Smith v Commissioner of Police NSW Police Force and NSW Fair Trading and Zahra v Commissioner of Police, NSW Police Force and NSW Fair Trading can be distinguished on their facts. He says that evidence demonstrates no activity between the Applicant and any outlaw motor cycle gang nor has a history of drug use and abuse.
8. It is submitted the intention and the purpose of the Act is to rid the industry of any criminal or otherwise undesirable element primarily being outlaw motor cycle gangs. There is no suggestion that the Applicant is associated with either directly or remotely, any outlaw motor cycle gangs. It is further not suggested in his criminal record that he is associated with such activities.
9. Mr Wright referred to the Applicant's evidence of attendances on the tattoo parlour on two separate occasions and that on both occasions the Applicant was allowed to continue to operate. He submitted that it must be assumed that the tattoo parlour was operating within licensing requirements. He further submitted that this is a relevant consideration to be taken into account.
10. Mr Wright referred to the decision of Deputy President Hennessy in Jay v Commissioner for Fair Trading [2014] NSWCATAD 180 in which the Deputy President determined that "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". Mr Wright submitted that under section 60 of the Administrative Decisions Review Act 1997 the Tribunal could "allow the temporary granting of a tattooist licence for a period of say two years, subject to a good behaviour period whereupon which the Applicant would need to again apply for the tattooist licence under the provisions of the Act but the two year period could be taken into account in any further decision by the Commissioner of Fair Trading".
11. In response to the issues raised by the Commissioner regarding the Applicant's non-appearance at the stay hearing and the allegation that he continued to perform as a tattoo artist after his licence application had been refused, Mr Wright submitted: The Applicant indicates to the Tribunal on 27 October 2015 that he requests a stay in order for him to be able to work. The Applicant is not a man of high intelligence and not legally trained and this needs to be taken in the context of the court proceedings and transcript of 27 and 28 Oct 2015. The Applicant fell on the presumption that on 28 October 2015 he would be granted a stay and consequently not be restrained. He automatically presumed that he would be granted the stay on 28 October 2015 due to financial hardship. This thought process was probably infiltrated by messages and communication with officers of the Commissioner for Fair Trading. In the alternate, his mind was set by the well-known legal principle of 'presumed innocent until proved guilty'. For whatever reason which is not clear by the transcripts of the 27 and 28 October 2015, Mr Moore did not attend. It is noted in the transcript of 27 October 2015 that Mr Moore found it difficult to attend Sydney from the Central Coast due to not having a driver's licence. It should be noted on 27 Oct 2015 that Mr Moore could not drive to Sydney to attend on the occasion due to his compliance with his cancelled driver's licence and adherence to that licencing system. In that respect it is easy for the respondents to throw stones from there ivory towers without considering a man simply trying his best to understand a complicated legal system and make a living. Mr Moore on his evidence had difficulty locating the Tribunal and for whatever reason was uncontactable by phone on 28 Oct 2015. It may be that a Family member became ill that day. In any event, consequently he did not have opportunity to represent himself at Stay Proceedings and did not have the opportunity to be heard. In the absence of being heard on the 28 Oct 2015 Mr Moore misunderstands the situation and considered in some way the Stay Application was not dismissed but rather the provisions under the Tattoo Parlours Act 2013 ("the Act") in respect to the waiver provisions again took hold which allowed him to continue to work. It is submitted this understandable misunderstanding is consistent with the evidence given by the Respondents under cross-examination on 10 December 2015 including that from Mr Stanislaw Jurowski Acting Co-ordinator Business Licensing at NSW Fair Trading (Stan) who under cross-examination made admissions the Act was both complex and confusing and that people often demonstrated frustration when dealing with him. Transcript of 27 October 2015 The transcript in terms of the evidence provided is not clear in a number of respects: (a) page 3 (30) By Mr Moore: letter not received. Unclear as to what was meant by Mr Moore. It is submitted a Misunderstanding must be the preferred conclusion; (b) page 3 (35):By Mr Moore: no-one explained what the process was. The evidence provided at the hearing on 10 December 2015 by the Respondents demonstrates a confusing process under a new Act. The Respondents' own evidence establishes that under cross-examination, in particular in cross examining the witness for the Commissioner for Fair Trading, Stan, five phone calls were attempted to reach the witness which went to message bank and when he was finally on the line his evidence came across very unclear and at times, undiscernible. It is submitted misunderstanding should be entitled to anyone dealing with that particular phone number; (c) page 5 (30): It is provided in evidence when Solicitor for Respondent was asked by the Senior Member have you spoken to Mr Moore the response was "I have not". In those circumstances it only adds to the confusion as to what transpired on the following day; (d) page 12 (45) and page 13 (30) - Plus - page 10 (15-20): With respect the Respondents instructing Solicitor and Counsel caused some confusion in the sense that no instructions were certain and one or other had left the building providing confusion on the day; Summary In response to the Commissioner of Police's supplementary submissions it is submitted the argument draws a long bow when attempting to apply it to a member of the public who is not legally trained and by his own evidence did not really understand what the process was and certainly did not understand what words such as "stay order...", "interim stay ...", "interim stay order..." meant. In the confusion of the process it is submitted that the Commissioner of Police's supplementary submissions are irrelevant. At their highest they demonstrate a misunderstanding by the Applicant. The real issue is the fit and proper person test as applied in the case law and the case most on point to deal with the current matter before the Tribunal is the case of Re: Dyas. To attempt to draw an inference of dishonesty upon the Applicant in circumstances of two unconvincing transcripts where misunderstanding by both parties is demonstrated where the Applicant is just seeking to earn a living and to deprive him of that would be a harsh approach.

Discussion

1. The Applicant's case is essentially that he accepts that he has a long history of criminal conduct and that his record includes numerous larceny, drug and alcohol and traffic related offences, however he contends that since his last conviction he has changed his ways and that he is now living a clean and productive life and wants to do well.
2. As has been noted above, the Applicant's most recent conviction was in relation to the larceny offences committed in February 2012 when he broke into 4 vehicles parked in a public car park and removed personal property.
3. I agree that the Applicant's record shows a disregard for the law. I also agree that it shows poor character and lack of integrity. The question of his fitness and propriety for the purposes of this application turns on whether it can be said that his conduct since February 2012 suggests that he has indeed changed his ways.
4. I accept that the Applicant's most recent convictions concern an event that occurred over four years ago. However, his record extends for a very long time prior to that most recent offence. The evidence on which the Commissioner relies provides indications that he has a continuing disregard for, or disinterest in, the laws that apply to the tattoo industry.
5. The Applicant's application for a tattooist licence was refused on 2 September 2015. Prior to that date he was entitled to work as a tattooist because he had lodged his application prior to the cut-off date of 1 October 2013. However, after he received notice of the decision to refuse his licence application he was not permitted to work. This was made clear to him in the letter accompanying the notice of the determination to refuse his application. The letter made it clear that he was not entitled to work as a tattooist without a licence and that he could apply to the Tribunal for external review of the determination.
6. On 1 October 2015 he applied to the Tribunal for an interim order that would allow him to continue to work as a tattooist until the matter could be determined. It is apparent from the face of the application that he understood the need for an order to allow him to continue to work.
7. I dealt with the Applicant's application for an interim order on 13 October 2015 but I did not grant the order that he was seeking because he did not appear at the hearing. Instead, I listed the matter for directions on 27 October 2015. I did not list it for reconsideration of the interim order application.
8. The Applicant appeared by telephone at the directions hearing on 27 October 2015. The transcript of that directions hearing indicates that a discussion took place in an attempt to have the matter relisted quickly to deal with the interim order application. The transcript also indicates that the Applicant was aware that he could only work as a tattooist if the interim order was granted. The matter was listed for a further stay hearing the following day. The Applicant did not appear on that occasion and no stay was granted.
9. I note Mr Wright's submission that "the Applicant is not a man of high intelligence and not legally trained and this needs to be taken in the context of the court proceedings"; that he did not really understand what the process was and certainly did not understand what words such as "stay order...", "interim stay ...", "interim stay order..." meant; and that he is "a man simply trying his best to understand a complicated legal system and make a living." I also note his submission that the Applicant presumed that he would be granted the stay on 28 October 2015.
10. I accept that the Applicant found it difficult to attend Sydney from the Central Coast due to not having a driver's licence. The transcript indicates that this was discussed at the directions hearing on 27 October 2015. The Applicant appeared by telephone on that occasion and could have done so at the hearing on 28 October 2015.
11. I note Mr Wright's submission that the Applicant's misunderstanding and presumption that he would be granted the stay on 28 October 2015 is understandable. I do not agree. The transcript and the application form seeking the interim order both indicate that the Applicant was aware that he could not work as a tattooist unless the interim order was granted.
12. I also note Mr Wright's submission that the administrative requirements on tattooists are minimal and that the Applicant's history of non-compliance with primarily traffic legislation does not demonstrate that the Applicant will not comply with the relatively simple administrative obligations he has under the Act. This submission does not address the fundamental requirement imposed by section 7 of the Act which states: 7 Body art tattooists to be licensed (1) An individual must not perform any body art tattooing procedure for fee or reward unless authorised to do so by a tattooist licence. Maximum penalty: (a) for a first offence, 50 penalty units, and (b) for a second or subsequent offence, 100 penalty units. (1A) An individual must not perform any body art tattooing procedure (whether or not for fee or reward) at premises in respect of which an operator licence is in force unless authorised to do so by a tattooist licence.
13. Nor does Mr Wright's submission address the Applicant's role in regard to the operation of the Great Tatts Long Jetty parlour. The evidence suggests that the Applicant was managing the parlour and that he did so at a time when no operator licence was in force in relation to the parlour.
14. The Applicant's application to the Tribunal states that he received the notice of the determination to refuse his application on 7 September 2015. Ms Corbo's evidence suggests that the Applicant continued to perform body art tattooing procedures after that date. For example, Ms Corbo referred to a posting, dated 19 September 2015, on the "Great Tatts Long Jetty" Facebook page which referred to work that the Applicant had performed on the previous day.
15. Under cross-examination the Applicant conceded that he had continued to perform body art tattooing procedures up until he received legal advice on 19 November 2015.
16. Ms Corbo referred to other postings on the Facebook page up until 25 November 2015 suggest that the Applicant had performed tattooing procedures well after he received the notice of the determination to refuse his application. The postings also suggest that the parlour was still operating at least up until 25 November 2015 and that it was doing so without an operator's licence. Entries in the log book for the parlour support this evidence.
17. The Commissioner submits that the Applicant's explanations are implausible and that an inference of dishonesty can be drawn. In contrast, Mr Wright's submission is that, at its highest, the Applicant's conduct demonstrates a misunderstanding and not dishonesty.
18. I agree with the Commissioner that the Applicant's offences are not trivial matters. However, a significant period has passed since his last conviction. Of greater concern in my view is the Applicant's conduct since he was advised that his licence application had been refused. I agree with Mr Wright in regard to the issue of dishonesty. However, in my view the issue extends beyond a misunderstanding. Rather, it shows a disregard for the law. This is consistent with the Applicant's long history in regard to his disregard for the traffic laws.
19. As has been noted in the cases I have referred to above, assessment of whether a person is fit and proper to be the holder of a licence is to be undertaken in the light of the nature and purpose of the activities that the person will undertake. In Hughes and Vale Pty Ltd v New South Wales (No. 2) the High Court said that the assessment requires consideration of three things - honesty, knowledge and ability. The Applicant must show that he has a requisite knowledge of the duties and responsibilities devolving upon him as the holder of a particular licence: Sobey v Commercial and Private Agents Board.
20. While I accept Mr Wright's submission that the Applicant's conduct does not demonstrate dishonesty, in my view it does demonstrate a lack of knowledge of or a continuing disregard for, the duties and responsibilities that apply to a licensee under the Act.
21. There is no question of the Applicant's ability to undertake the work as a tattooist. On the evidence I am satisfied as to the Applicant's honesty. However, I am not satisfied as to his level of knowledge.
22. In my view, given his lack of knowledge, continuing disregard for, or disinterest in the law and his long history of disregard for the law, it is likely that he would not comply with the duties and responsibilities that would apply to him as a licensee if the licence were granted at this stage. I note that in addition to the administrative requirements of the Act, there are also standards of health and safety that must be maintained and the duties and responsibilities imposed on an operator extend further than those that are applicable to a tattoo artist. I have concerns that if the Applicant were to disregard the law in regard to those standards the consequences could be serious.
23. On the evidence before me, it is my view that the decision to refuse to grant the licence was the correct one and it should be affirmed.
24. However, if the Applicant takes steps to familiarise himself with the legislative requirements and if he reapplies for the licence and is able to satisfy the Commissioner of his level of knowledge and that he has addressed the other issues that remain as a cause of concern, then I would recommend that the licence be granted.

Orders The decision under review is affirmed. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar

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

Amendments 24 May 2016 - Paragraphs 5, 44, 45 remove reference to not for publication. 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 May 2016