McDonald v Commissioner for Fair Trading [2018] NSWCATAP 164

McDonald v Commissioner for Fair Trading [2018] NSWCATAP 164

The Appeal Panel held that the appellant had not established any error of law or other appealable error. The Tribunal's findings that the appellant was not a fit and proper person and that granting the operator licence would be contrary to the public interest were reasonably open on the material, including his repeated failures to comply with notification and regulatory obligations under the Tattoo Parlours Act 2012, his responses showing reluctance to accept responsibility, his traffic history, and misleading social media reviews. None of the challenged considerations was shown to be irrelevant or wrongly weighed, financial hardship was not relevant to fitness and propriety, the OMCG...

Jurisdiction
Australia
Judgment Date
09 July 2018
Procedural Posture
Internal Appeal and Application for Leave to Appeal From Administrative Review Decision Concerning Refusal of Operator Licence Under the Tattoo Parlours Act 2012 / Appeal Panel of the Civil and Administrative Tribunal of New South Wales
Outcome
Application for leave to appeal refused; appeal dismissed.
Legal Topics
['tattoo Operator Licence' 'fit and Proper Person Test' 'adverse Security Determination' 'public Interest' 'procedural Fairness' 'leave to Appeal']
['administrative Law' 'licensing and Regulation'] ['tattoo Operator Licence' 'fit and Proper Person Test' 'adverse Security Determination' 'public Interest' 'procedural Fairness' 'leave to Appeal']

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Procedural Posture

Internal Appeal and Application for Leave to Appeal From Administrative Review Decision Concerning Refusal of Operator Licence Under the Tattoo Parlours Act 2012 / Appeal Panel of the Civil and Administrative Tribunal of New South Wales

Legal Issues

  1. 1 ["Whether the Tribunal erred in applying the fit and proper person test to the appellant's application for an operator licence under the Tattoo Parlours Act 2012." 'Whether the Tribunal applied too high a standard of fitness and propriety.' 'Whether the Tribunal failed to consider hardship to the appellant as a relevant factor.' 'Whether the Tribunal erred by referring to outlaw motorcycle gangs where no organisation had been declared under the Crimes (Criminal Organisations Control) Act 2012.' 'Whether the Tribunal gave excessive weight to failures to register the business name and to notify close associates and changes in the business.' 'Whether the Tribunal took into account an irrelevant consideration by considering fake online reviews and possible Australian Consumer Law contraventions.' 'Whether the appellant was denied procedural fairness before the Tribunal.']

Ratio Decidendi

The Appeal Panel held that the appellant had not established any error of law or other appealable error. The Tribunal's findings that the appellant was not a fit and proper person and that granting the operator licence would be contrary to the public interest were reasonably open on the material, including his repeated failures to comply with notification and regulatory obligations under the Tattoo Parlours Act 2012, his responses showing reluctance to accept responsibility, his traffic history, and misleading social media reviews. None of the challenged considerations was shown to be irrelevant or wrongly weighed, financial hardship was not relevant to fitness and propriety, the OMCG...

Court Disposition

Application for leave to appeal refused; appeal dismissed.

Orders

  • ["Appellant's application for leave to appeal is refused." 'The appeal is dismissed.' "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." 'The recording and transcript of the confidential...