Mumby v Commissioner for Fair Trading

NCAT Administrative and Equal Opportunity|2016-11-02

Background

The factual background to this matter is not in dispute.
Mr Mumby worked as an apprentice tattooist in a number of businesses between 2011 and 2015. In April 2014 he was granted a tattooist licence under the Act. On 12 June 2014 he registered the business name Addictive Needle with the intention of starting his own business.
On 24 August 2015 Mr Mumby applied for an operator licence. Mr Mumby did not declare any close associates on the application form. After submitting the application he was told by a Fair Trading officer that he had to have business premises in order for the application to be processed. A friend, Mr Cosmos Repousis, a tattooist he had met while working at a studio in Bankstown, referred him to Alexander Souris who was selling his tattoo business. For the sum of $10,000 Mr Mumby purchased the business's equipment and the opportunity to take over the business in its existing premises in Menai. From about 19 September 2015 he operated the business from those premises under the name Inkful Sin Tattoos. About a month or two after he started the business, Mr Repousis commenced working as a tattooist at the premises.
On 7 January 2016 Police visited the business premises in Menai for a business inspection. Mr Mumby and Mr Repousis were at the premises. During this visit the Police informed Mr Mumby he could not operate the business without an operator licence. Police attended the business premises for a second time on 12 January 2016. Again, Mr Mumby and Mr Repousis were present. Police provided Mr Mumby with a copy of the Fair Trading Tattoo Parlour Information Package and again warned him not to trade without an operator licence. They also told him he needed to change his address for his tattooist licence from his previous employer to his current address (which he subsequently did). During this visit Police also advised Mr Repousis that, as he did not hold a current tattooist licence, he could not trade as a tattooist.
Mr Mumby did not cease to trade following this visit by Police and both he and Mr Repousis carried out tattoo work at the premises until Mr Mumby's application for an operator licence was refused.

Mr Mumby's case

Mr Mumby states that, as he had purchased an existing business from Mr Souris, he thought he could operate the business. He said he did not understand that what he was doing was illegal. He said that from January to June 2016 he continued to operate the business in the hope that he would be granted an operator licence. He said he did not think it would take so long for the application to be processed.
Mr Mumby said he could not afford to rent premises, which is requirement of a licence application, and provide for his family without having an income. He said he had no other option but to operate the business so he could support his family financially during this period. This was the first time he had operated a business and he did not have any help in doing so. He said he jumped into it all a bit too quickly without looking into what was required and without understanding the law. He said he just wanted to get on with the business.
Mr Mumby said that, after the visits by the Police, he thought about going and working for someone else, but he did not want to work for anybody else. He also said he wasn't qualified to do any other type of work. Mr Mumby said that tattooing is what he is good at and what he wants to do.
In relation to Mr Repousis, Mr Mumby said that he had no close associates at the time he made his application for an operator licence. He said Mr Repousis started working at the Menai premises a month or two after Mr Mumby started the business. He said he did not update his application as he did not regard Mr Repousis as a close associate within the meaning of the Act. He thought a close associate was a member of a gang or a bikie.
Mr Mumby said Mr Repousis was paid directly by clients for the work he did and rented space in the shop from Mr Mumby. He said Mr Repousis had his own tattooing equipment and he regarded Mr Repousis as a contractor or sole trader. Mr Mumby said he did not know when he commenced that Mr Repousis did not have a current tattooist licence. He did not ask Mr Repousis whether he had a licence because he knew he had been tattooing for some 10 years. As Mr Repousis was a sole trader, he thought it was his responsibility to obtain a licence and was nothing to do with him. He therefore let Mr Repousis continue to use the premises after the visit by Police on 12 January 2016. He did, however, tell him he had to get to get his licence.
Mr Mumby has no criminal convictions. He provided several character references from family and friends, all of whom attest to his good character. They also spoke highly of his talent and professionalism.
Mr Mumby states he now understands the law and his obligations and will ensure he complies with all relevant requirements in the future.

Fit and proper

The expression 'fit and proper' is a common statutory term and has been considered by this Tribunal and in other jurisdictions in numerous cases.
In Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127 at 156-7 the High Court said: The expression 'fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances.
These sentiments have been echoed in cases before the Tribunal and it is generally accepted that what is fit and proper needs to be determined by reference to the activities in issue and is to be gauged in light of the nature and purpose of the activities that the person will undertake (AJO v Director-General of Transport [2012] NSWADT 101 at [26]; Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 at [82]).
In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 Toohey and Gaudron JJ said: 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. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, 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 that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
They went on to say at 388: The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.
In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said: In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails.
In Smith v Commissioner of Police & Commissioner for Fair Trading [2014] NSWCATAD 184 at [19-20] in the context of the Tattoo Parlours Act, Senior Member Montgomery stated: [19]…There is no "Principles and Objects" section within the Act. The Tribunal can look at Hansard and the Minister's speech to ascertain the purpose of the Act - the mischief that the statute was designed to cure. In his second reading speech on the introduction of the Bill to Parliament, the Minister for Police and Emergency Services Mr Gallacher noted that the Act was introduced in response to gang crime in NSW. It aims to break the stranglehold that outlaw motorcycle gangs have over the tattoo industry. It was anticipated that removing bikies from the tattoo industry will reduce the reasons for rival gangs to fight turf wars, because these businesses will no longer be symbols of a gang's territory… [20] While the second reading speech focused on the involvement of outlaw motorcycle gangs in the tattoo industry, it is clear from the Act that the broader intention is to rid the industry of any criminal or otherwise undesirable element and the avoidance of improper conduct.
There is no suggestion in this case that Mr Mumby is involved in or associated with any gang or outlaw motorcycle gang criminal activity.

Public interest

In general, the concept of the public interest is designed to give the broader interests of the community priority over private interests of individuals. In Smith v Commissioner of Police & Commissioner for Fair Trading [2014] NSWCATAD 184 Senior Member Montgomery set out a number of authorities in which the concept of the public interest has been considered (at [42-47]). In Roberts v Commissioner for Fair Trading [2016] NSWCATAD 218 Senior Member Montgomery said that the authorities referred to in Smith indicated that: 1. The 'public interest' is a term embracing matters, among others, of standards of human conduct and of the functioning government and government instrumentalities. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals. 2. The 'public interest' is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. 3. An applicant's personal interests in retaining his licence cannot outweigh the public interest in having full confidence in the professionalism of people involved in the security industry. 4. The "public interest" allows for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system.
He went onto say: Public confidence in the scheme and regulatory requirements under the Act is a public interest consideration. In the Second Reading Speech, Mr Roberts stated that the public interest test under the Act "is designed to address the criminal matters currently surrounding the industry, such as ... personal violence". The scheme has as one its objectives the exclusion of persons with criminal tendencies from the tattooing industry, with a view to protecting public safety.

Discussion

Mr Mumby contends that at all times he intended to comply with the legislative scheme. He acknowledges that he possessed very little knowledge of the scheme but states that fact should not be held against him in determining whether or not he is a fit and proper person to be granted the licence. He refers to his young age at the time and his overwhelming desire to have his own tattoo business. He states he never tried to hide anything and was forthcoming with Police when they were carrying out their inquiries. He states he has no criminal history, is of good character and will fully comply with the legislation in the future.
Mr Mumby gave evidence about his financial concerns if he had to maintain premises while the licence application was under consideration but could not operate the business. However, any financial hardship that will be occasioned by the decision is not relevant to the assessment of a person's fitness and propriety (Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 at [73]; Lal v Director-General, Department of Transport [2001] NSWADT 74 at [47]).
The respondents state that Mr Mumby's repeated breaches of the Act in circumstances where he had received a clear warning as to his obligations is demonstrative of an attitude whereby he is willing to breach the provisions of the Act if it suits his personal interests.
While I accept that Mr Mumby may not have been fully conversant with this obligations and responsibilities under the Act and did not act out of any malicious intent, it is apparent from the evidence that he failed to comply with the provisions of the legislation in a number of ways. He failed to declare Mr Repousis as a close associate on his application for the operator's licence (contrary to s 12 of the Act) or at least to update that information when Mr Repousis commenced working at the premises. Mr Mumby commenced trading without holding an operator's licence (contrary to s 6 of the Act) and he permitted Mr Repousis to carry out tattoo work from his premises when Mr Repousis was not the holder of a tattooist licence (contrary to s 8 of the Act).
Of most concern is that Mr Mumby continued to operate the business and to permit Mr Repousis to carry out tattoo work at the premises after being informed by Police that he could not do so on two occasions - 7 and 12 January. He was also provided with literature by the Police which clearly set out his obligations. He states he may have read part of the material but clearly it was his responsibility to fully inform himself as to his obligations as an operator. Mr Mumby continued to operate the business for a further five months while unlicensed.
I agree with the respondents' submissions that Mr Mumby has shown that he is willing to breach the provisions of the Act if it suits his personal interests. He did so over a sustained period and continued to do so despite being clearly informed by Police that he could not continue to operate and that Mr Repousis could not carry out tattoo work while unlicensed.
There may well be a point in the future when Mr Mumby gains the maturity and business knowledge that would be required to satisfy the authorities that he would in the future comply with the law. However, at this point in time I cannot be satisfied that he would adhere to all of the requirements of the licensing scheme. I therefore find that Mr Mumby is not a fit and proper person to hold an operator's licence. In such circumstances, where the public must have faith in the integrity of the licensing scheme, neither would it be in the public interest for Mr Mumby to be granted a licence.

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: 13 January 2017

Nature of review

A person whose application for a licence under the Act has been refused may apply to this Tribunal for an administrative review of that decision (s 27(1)).
In circumstances where, in accordance with s 14 of the Act, Fair Trading has referred a licence application to the Commissioner for an investigation and determination as to whether the applicant is a fit and proper person to be granted the licence and whether it would be contrary to the public interest for the licence to be granted, and the Commissioner has made an adverse security determination, Fair Trading must refuse to grant the licence.
On review, however, the Tribunal is not bound by the security determination and must make a fresh determination, on the basis of the information before it, whether the applicant is a fit and proper person to be granted the licence and whether it would be contrary to the public interest for the licence to be granted (Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 at [37]).
The issues in this case are therefore whether Mr Mumby is a fit and proper person to be granted the licence and whether it would be contrary to the public interest for the licence to be granted.

At a glance

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Decision date

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Judgment (6 paragraphs)

Parties

Cases Cited (6)

Cited By (2)