Burch v Office of Fair Trading (No.2) [2016] QCAT 435

CITATION: Burch v Office of Fair Trading (No.2) [2016] QCAT 435 PARTIES: Travis Charles Burch (Applicant) v Office of Fair Trading (Respondent) APPLICATION NUMBER: GAR154-16 MATTER TYPE: General administrative review matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Guthrie DELIVERED ON: 9 November 2016 DELIVERED AT: Brisbane ORDERS MADE: 1. The application to extend the time to bring a stay application filed by Mr Burch on 5 October 2016 is dismissed under s 47 of the Queensland Civil and Administrative Tribunal Act 2009. 2. That until further order, the decision of the Office of Fair Trading, dated 26 April 2016, to suspend the Private Investigator licence of Travis Charles Burch is stayed. CATCHWORDS: PROCEDURE – Stay – where private investigator charged with disqualifying offence – where decision made to suspend private investigator licence - where applicant raises issue about essential element of alleged offences – where applicant allowed to remain free without restriction – where charges not alleged to have occurred while acting in capacity of private investigator – where conceded suspension of licence will cause financial detriment to applicant - whether arguable case on review - whether balance of convenience favours stay -- 1 of 9 -- 2 Criminal Code Act 1899, s 408C Security Providers Act 1993, ss 6, 11, 21, Schedule 1 Security Providers (Security Firm Code of Practice) Regulation 2008 s 3 Queensland Civil and Administrative Tribunal Act 2009 s 22 Black v Chief Executive, Department of Employment, Economic Development and Innovation [2011] QCAT 27 Burch v Office of Fair Trading [2015] QCAT 363 Deputy Commissioner Stewart v Kennedy [2011] QCATA 254 Featherstone v Department of Justice and Attorney-General, Industry Licensing Unit [2015] QCAT 223 Quinn v Qld Law Society [2012] QCAT 274 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION Background and the applications before the Tribunal [1] On 1 July 2015, the Office of Fair Trading suspended Mr Burch’s private investigator licence under s 21(5) of the Security Providers Act 1993 (Qld) (the SPA). The basis for that decision was that Mr Burch had been charged twice for ‘fraud – dishonestly gain benefit/advantage’ (charges 1 and 2). Mr Burch applied to the Tribunal for review of that decision and further applied for a stay of the decision. [2] On 27 August 2015, the Tribunal (differently constituted) decided to stay the decision dated 1 July 2015 until further order of the Tribunal.1 [3] On 24 February 2016, Mr Burch was charged with ‘fraud – dishonestly gain benefit/advantage value of/over $30,000’ (charge 3). The circumstances surrounding charge 3 are essentially the same as charges 1 and 2. [4] On 26 April 2016, the Office of Fair Trading decided to suspend Mr Burch’s private investigator licence. Mr Burch has applied to the Tribunal to review that decision and has also applied for a stay. The application to extend time 1 Burch v Office of Fair Trading [2015] QCAT 363. -- 2 of 9 -- 3 [5] I note that in addition to his application for a stay, Mr Burch filed an application to extend time to bring the stay application.2 On 4 October 2016 following a directions hearing, the Tribunal directed that Mr Burch file any application for a stay by 11 October 2016. Mr Burch complied with that direction. The chief executive does not argue that I must make a decision in relation to the application for an extension of time or oppose the application. The chief executive makes submissions in relation to the application for a stay. I do not consider that it was necessary for Mr Burch to make the application to extend time for the lodging of his stay application. Therefore, for completeness, I will dismiss that application as misconceived under s 47 of the QCAT Act. [6] It is the application for a stay of the decision dated 26 April 2016 that I must determine. The reviewable decision and the relevant provisions of the Security Providers Act 1993 (Qld) [7] The charging of a licensee with a disqualifying offence is a ground for suspending the licence concerned until the end of the proceeding for the charge.3 [8] If the chief executive, after considering all representations still believes that grounds to take the proposed action to suspend a licence exist the chief executive may suspend the licence.4 There is a discretion to suspend the licence. It does not automatically follow that a ground being established for suspending the licence, the licence must be suspended. What must the tribunal consider on an application for a stay? [9] Under s 22 of the QCAT Act, the Tribunal may make an order staying the operation of a reviewable decision if a proceeding for the review of the decision has started and only if it considers the order is desirable having regard to the following:  The interest of any person whose interests may be affected by the making of the order or the order not being made;  Any submission made to the tribunal by the decision-maker for the reviewable decision;  The public interest5 2 Both applications were filed in the Tribunal on 5 October 2016. 3 SPA s 21(5) . 4 SPA s 22 SPA. 5 QCAT Act, s 22(3) and s 22(4). -- 3 of 9 -- 4 [10] It has been accepted in decisions of the Tribunal6 and the Appeal Tribunal7 that in considering whether a stay is desirable, the Tribunal should consider the curial principles namely: a) Whether Mr Burch has an arguable case; and b) Whether the balance of convenience favours granting a stay. [11] The factors to be considered in determining whether the balance of convenience favours the granting of a stay include:  Whether the review maybe rendered nugatory if the stay is not granted;  The impact of the stay on both parties and  The public interest. Material considered [12] I have considered the submissions made by the respondent dated 18 October 2016 with attachments ‘A’ to ‘L’ and the outline of argument of the applicant dated 15 February 2016 in so far as I consider it relevant to Mr Burch’s application for a stay.8 Consideration [13] There is no dispute that Mr Burch has been charged with disqualifying offences relating to fraud.9 If a conviction is recorded on any of the charges for Mr Burch his licence will be automatically cancelled.10 Therefore, it is not surprising then that being charged with such an offence is a ground for suspending a licence. Those provisions in the SPA and the provisions related to the entitlement of individuals to hold licences, are clear that matters of dishonesty and a lack of integrity as well as involvement in unlawful activity are matters which go to whether a person is appropriate to hold a licence.11 Does Mr Burch have an arguable case? [14] There is no dispute that a ground exists for suspending Mr Burch’s licence. However, it does not automatically follow that because a ground exists to 6 Quinn v Qld Law Society [2012] QCAT 274. 7 Deputy Commissioner Stewart v Kennedy [2011] QCATA 254. 8 While this submission was not filed strictly in relation to the application for a stay, the respondent has referred to aspects of it in its submissions in response to the stay application. 9 SPA Schedule 1 and Criminal Code s 408C. 10 SPA s 24. 11 See also SPA, s 11(1)(d) and s 11(3), (4), (5) and (6). -- 4 of 9 -- 5 suspend the licence that the licence must be suspended. The decision to suspend is within the discretion of the chief executive. [15] I accept that the alleged offences are serious. However, at this stage they are charges and Mr Burch is yet to be tried. I acknowledge that there are now three charges against Mr Burch and at the time the Tribunal granted the stay of the decision made 1 July 2015 there were two. [16] I note that charge 3 includes an element that Mr Burch has received a financial advantage in excess of $30,000, an arguably more serious charge than the previous two. However, I consider that all three charges arise out of the same alleged facts. I do not consider that the fact that there is now an additional charge of itself means that Mr Burch’s case is not arguable. [17] I have examined the documents provided to the Office of Fair Trading by the Queensland Police Service. I do not consider that the alleged facts that have given rise to the charges occurred in Mr Burch’s performance of his work as a private investigator. They have not occurred as he carried out work connected with his licence.12 Further, they do not involve matters impacting the physical safety of the public. [18] I consider that Mr Burch has an arguable case on his application for review. That Mr Burch faces charges only at this stage, that the alleged facts upon which the charges are based are not directly related to the performance of his work as a private investigator, that there are not concerns about public safety and that the decision to suspend requires the exercise of a discretion, support my view conclusion. In reaching that conclusion, I make no finding on the strength of his case, only that I do not consider that his application for review is without merit. The impact of the stay on both parties and the affect on the interests of others [19] It is agreed that there is disadvantage to Mr Burch in not granting the stay. It is conceded by the Office of Fair Trading that Mr Burch relies on his private investigator licence to earn an income. Mr Burch says that he is married and has a mortgage and other expenses. The Office of Fair Trading says that Mr Burch can still use his Field Agent – Sub Agent’s registration certificate under the Debt Collectors (Field Agents and Collections Agents) Act 2014 (Qld) to earn an income. [20] Mr Burch concedes that point and says that he is also an ASIC agent but says that he derives not more than 10% of his income from work related to those certificates. I have no evidence as to what Mr Burch earns from his private investigating work or indeed from any work. I have no evidence regarding whether his partner earns any income. I have also considered that Mr Burch’s licence has been suspended since April. Mr Burch says that 12 See SPA, s 6 for who is a private investigator. -- 5 of 9 -- 6 his role at his place of employment has been to perform casual administrative tasks due to the suspension of his licence. [21] However, based on the concession made by the chief executive and accepting in general terms that Mr Burch derives a higher proportion of his income from his work as a private investigator than he does using his other certificates, I accept that there will be not insignificant financial detriment caused to Mr Burch if the stay is not granted. [22] Against that disadvantage, I must weigh any disadvantage to the chief executive or any other affected persons. [23] The chief executive submits that there are a number of complainants (the alleged victims of fraud who have lost varying amounts of money) and their interests are relevant. Clearly, it is alleged that complainants have lost sums of money and so it is alleged that Mr Burch’s conduct adversely impacted those people. Their loss has already occurred. I do not consider that the complainants will be further adversely affected if the stay is not granted. [24] Further, the chief executive says that current and future clients of Mr Burch are also impacted. The chief executive says that ‘it is entirely reasonable for existing clients to hold an expectation for Mr Burch to, in effect, ‘stand aside’ from his present activities, until the charges are resolved one way or another.’ The chief executive says this is to ensure he cannot impact a wider group of the public.13 [25] The chief executive says that Mr Burch’s future clients deserve special consideration. It is submitted: Clients seek the services of security professionals, such as private investigators, to deal with highly personal and confidential matters. To ensure integrity of industry participants, including the Applicant, the SP Act conducts probity screening and then posts the name and details of each approved licensee on the public register on the OFT website. Members of the public, and importantly new clients can access the website to ensure the person they are entrusting their private matters to, is licensed and without adverse issues. When a licence is suspended or cancelled, the entry does not appear on the public register. By issuing a stay, OFT would be compelled to reverse the suspension. The Applicant would then be on the public register, without any hint of impropriety. New clients could be completely unaware of the allegations against the Applicant. It is submitted the Applicant would be unlikely to tell his new clients about the charges himself, however it is a situation which in all fairness new clients have a right to know about or through reasonably enquiry on the OFT website, inform themselves of. [26] While I accept that the granting of the stay will mean that the relevant public register will not reflect the suspension decision, the register does not apparently reflect the nature of the grounds for any suspension. Therefore, the degree of alleged impropriety would not be known either way. The 13 Respondent’s submission on the stay [44]. -- 6 of 9 -- 7 suspension would simply prevent Mr Burch working as a private investigator. [27] I note Mr Burch’s submission that his primary income is derived from being employed and contracted to a licenced security firm and he does not advertise his services independently and that his work is supervised and monitored.14 [28] I consider that as the alleged facts supporting the charge did not occur in relation to his work as a private investigator, there is little risk to current or future clients who engage Mr Burch as a private investigator. [29] I have also considered the disadvantage to the chief executive in not granting the stay. I am satisfied that given the powers of the chief executive in administering the licensing scheme under the SPA that the chief executive will not be disadvantaged if the stay is granted. The public interest [30] The chief executive submits in relation to the public interest that private investigators are typically operators who investigate missing persons, conduct covert surveillance operations and such activities require persons ‘at the very pinnacle of probity and personal integrity.’15 I accept that personal integrity is a matter going to whether a person is an appropriate person to hold a licence and therefore a matter for consideration on review and there is a public interest in maintaining the integrity of a licensing scheme designed to protect the public. I also accept that the holding of a licence under the SP Act is a privilege. [31] However, I do not accept that private investigators are held to a higher standard of behaviour due to inclusion with “those groups serving the public in the maintenance of law and order”.16 In that regard I agree with what Member Hughes said in Burch v Office of Fair Trading17: … However, the governing legislation does not cite maintaining law and order as a function of a private investigator.18 While the legislatively defined functions of a private investigator may partly overlap with the duties of a police officer, there are also pivotal differences. For example, private investigators do not swear an oath to uphold the law and order nor do they have a police officer’s powers of arrest. 14 Outline of argument of Trevor Burch filed 15 February 2016 [30]. 15 Chief Executive’s submissions on the stay dated 18 October 2016 [47]. 16 Chief Executive’s submissions on the stay dated 18 October 2016 [49] citing .Featherstone v Department of Justice and Attorney-General Industry Licensing Unit [2015] QCAT 223 at [18]. 17 [2015] QCAT363 at [10] and [11]. 18 SPA s 6. -- 7 of 9 -- 8 This does not mean that private investigators should not be held to appropriate standards of integrity and propriety.19 However, the key differences between police officers and private investigators highlight the special trust that the community as a whole reposes in its police officers, carrying the commensurate responsibilities and standards of behaviour. [32] I have already found that Mr Burch’s case is arguable. Further, I have already found that I do not consider that granting the stay will put current or future clients at risk. [33] I have also weighed that Mr Burch does not have any other criminal history. Further it has been found that the public interest is not served by depriving an individual and their family of their main source of income, while they seek a review of a suspension for unproven conduct outside their income earning activity: It is not in the public interest for security providers who find themselves in this situation to be necessarily deprived of their ability to earn an income while this process ensues. A person is innocent until proven guilty of the criminal charges. Each situation must be considered on its merits. The Act recognises this by providing that being charged with a disqualifying offence is a ground for suspension, but does not provide for automatic suspension following charges.20 [34] For all of those reasons I do not consider that the granting of the stay is contrary to the public interest. The public interest arguments made by the chief executive can be further argued on the substantive review. Whether the grant of the stay will render the application for review nugatory [35] In response to Mr Burch’s claim that the suspension decision is tantamount to a cancellation of his licence and suggestive of guilt in the public eye which, if the stay is not granted, will cause such financial detriment that he might be bankrupt or his reputation irretrievably ruined by the time the hearing takes place, thereby rendering him unable to ‘enjoy the fruits’ of any favourable outcome in the review, the chief executive submits that Mr Burch can trade on his sub-agent certificate, the Tribunal hearing will be quick and any inconvenience to him does not outweigh the higher public policy and protection of the public concerns if the stay were granted.21 [36] Without further evidence it is difficult for me to accept that if the stay is not granted, Mr Burch may become bankrupt. While the Tribunal seeks to determine matters quickly, according to other directions made on this file, 19 Security Providers (Security Firm Code of Practice) Regulation 2008 (Qld), s 3 provides standards of conduct for security firms to promote consumer and community confidence, the safety of the community and ethical and professional conduct. 20 Black v Chief Executive, Department of Employment, Economic Development and Innovation [2011] QCAT 27 at [17] as set out in Burch v Office of Fair Trading [2015] QCAT 363 at [13]. 21 Respondent’s submission on the stay application [61] and [62] -- 8 of 9 -- 9 the matter will not be heard until, at the earliest mid December.22 The decision of the Tribunal will follow sometime thereafter. I have insufficient evidence to form a view about the degree of the financial impact likely to be caused to Mr Burch in that time. However, as I have already found there will be financial detriment caused to Mr Burch if the stay is not granted. I also accept that there will likely be a negative impact on his professional reputation as the suspension will be recorded on the register. [37] Overall, I am unable to conclude that the failure to grant the stay will render the application for review nugatory nor do I consider that granting the stay will impact the chief executive’s case in the review. It is open for the tribunal hearing the substantive review to consider the material before it and reach what it considers on the evidence to be the correct and preferable decision. Conclusion [38] Weighing all of those matters and circumstances, I am satisfied that the balance of convenience favours staying the reviewable decision pending the outcome of the review. As Mr Burch’s case on review is arguable and the balance of convenience favours a stay, it is desirable that I order that, until further order, the decision of the Office of Fair Trading made on 26 April 2016, to suspend the Private Investigator licence of Travis Charles Burch is stayed. [39] In granting the application for a stay, I have not made any conclusive findings about the matters for consideration in the substantive review. 22 Directions made 4 October 2016 -- 9 of 9 --