Institoris v Commissioner for Fair Trading & Anor [2014] NSWCATAD 219

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Institoris v Commissioner for Fair Trading & Anor [2014] NSWCATAD 219 Hearing dates: 21 October 2014 Decision date: 21 October 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: S Montgomery, Senior Member Decision: The application for a stay of the decision to refuse to grant the Applicant operator's licences under the Tattoo Parlours Act 2012 is refused. Catchwords: CIVIL AND ADMINISTRATIVE TRIBUNAL - administrative review jurisdiction - security determination under Tattoo Parlours Act 2012 - application for operator's licence refused - stay application Legislation Cited: Administrative Decisions Review Act 1997 Tattoo Parlours Act 2012 Cases Cited: AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 Category: Interlocutory applications Parties: Steve Istvan Institoris (Applicant) Commissioner for Fair Trading (First Respondent) Commissioner of Police, NSW Police Force (Second Respondent) Representation: John Stonham & Co, Lawyers (Applicant) Crown Solicitors Office (First and Second Respondents) File Number(s): 1410588 Publication restriction: Section 75(2) of the Administrative Decisions Tribunal Act 1997 applies to those paragraphs of these reasons identified as '[not for publication]'. Those paragraphs are not to be released to the Applicant or the public.

reasons for decision 1A delegate of the Director-General for Fair Trading ("the Director-General") refused the Applicant's application for an operator's licence under the Tattoo Parlours Act 2012 ("the Act"). He had been operating a number of tattoo parlours without the need for a licence but was required to cease trading as a consequence of the determination. He ceased trading on 6 October 2014. He applied to the Tribunal for a stay of that decision so that he could continue to operate until the Tribunal makes a final decision as to whether he should be licenced. 2The determination relates to four tattoo parlours ("the parlours") as follows: (a)Yakuza Tattoo at Narellan ("the Narellan shop"); (b)Yakuza Tattoo at Campbelltown ("the Campbelltown shop"); (c)Yakuza Tattoo at Wollongong ("the Wollongong shop"); and; (d)Inkhouse at Macarthur Square ("the Macarthur Square shop"). 3Those tattoo parlours were operated by the company Yakuza Tattoo Pty Ltd ("the company"). The company was incorporated in July 2010, with the Applicant as the sole Director/Secretary and the sole shareholder. Prior to that date, the Applicant operated each of the tattoo parlours as a sole trader. 4When the Applicant applied for the licence, the Commissioner of Fair Trading referred the application to the Commissioner of Police ("the Commissioner"). 5Section 19(1) of the Act allows the Commissioner to determine whether an applicant is a fit and proper person to be granted a licence and whether it would be contrary to the public interest for the licence to be granted. In making that determination the Commissioner may have regard to any "criminal intelligence report or other criminal information held in relation to an applicant." But, under s 19(3), the Commissioner may only have regard to a report or information 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. 6The Applicant is a member of Rebels Outlaw Motorcycle Gang ("OMCG"). He has no criminal record. He previously held a Firearms Licence, which was revoked in July 2003. The Commissioner made an adverse security determination about the Applicant based on confidential criminal intelligence. In those circumstances, the Director-General was obliged to refuse the application.