Burch v Office of Fair Trading [2015] QCAT 363

CITATION: Burch v Office of Fair Trading [2015] QCAT 363 PARTIES: Travis Charles Burch (Applicant) v Office of Fair Trading (Respondent) APPLICATION NUMBER: GAR171-15 MATTER TYPE: General administrative review matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Hughes DELIVERED ON: 27 August 2015 DELIVERED AT: Brisbane ORDERS MADE: That until further order, the decision of the Office Of Fair Trading to suspend the Private Investigator licence of Travis Charles Burch dated 1 July 2015 is stayed. CATCHWORDS: STAY – where private investigator charged with disqualifying offence - whether arguable case on review – where applicant raises issue about essential element of alleged offences – where applicant allowed to remain free without restriction - whether balance of convenience favours stay – where complainants not affected – where charges not alleged to have occurred while acting in capacity of private investigator – where public confidence in licensing scheme less likely to be undermined – where public interest in not depriving income to individuals seeking review of suspension for unproven conduct outside their income earning activity – where not granting stay likely to adversely impact on applicant finances and cause substantial detriment Criminal Code Act 1899, s 408C Queensland Civil and Administrative Tribunal Act, s 22 -- 1 of 6 -- 2 Security Providers Act 1993, ss 6, 21, Schedule 1 Security Providers (Security Firm Code of Practice) Regulation 2008, s 3 Black v. Chief Executive, Department of Employment, Economic Development and Innovation [2011] QCAT 27 Bryant v. Commonwealth Bank of Australia (1996) 70 ALJR 306 Deputy Commissioner Stewart v. Kennedy [2011] QCATA 254 Featherstone v. Department of Justice and Attorney-General, Industry Licensing Unit [2015] QCAT 223 Harley v. Department of Justice and Attorney- General [2012] QCAT 390 Harley v. Department of Justice and Attorney- General [2012] QCAT 620 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). REASONS FOR DECISION What is this Application about? [1] The Office of Fair Trading has suspended Mr Travis Burch’s Private Investigator Licence because he has been charged with two counts of fraud, a disqualifying offence.1 Mr Burch wants the suspension stayed until the Tribunal reviews the decision to suspend his licence. Is a stay ‘desirable’? [2] The Tribunal may grant a stay if desirable, having regard to Mr Burch’s interests, submissions by the Office of Fair Trading and the public interest.2 In considering whether a stay is ‘desirable’, the Tribunal considers whether Mr Burch has an arguable case on review and whether the balance of convenience favours a stay.3 Does Mr Burch have an arguable case on review? 1 Security Providers Act 1993 (Qld) s 21(5), Schedule 1. 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 22(4). 3 Deputy Commissioner Stewart v. Kennedy [2011] QCATA 254 at [17] to [23]. -- 2 of 6 -- 3 [3] The Office of Fair Trading submits that Mr Burch has not provided any account of what happened to have some greater factual basis for the stay, meaning the Tribunal cannot determine the merits of his case.4 [4] The Tribunal has no role in determining the criminal proceedings.5 Nevertheless, whether Mr Burch has an arguable case on review may encompass a consideration of the circumstances of the charges. I agree with the Office of Fair Trading that the charges are serious.6 However, regard must also be had to Mr Burch at least partly addressing the circumstances of the charges in his submissions when he states: The allegations in the QP9 do not indicate at any stage that the Applicant was aware or complicit in a criminal enterprise. Each of the acts in isolation do not equal an act that is inherently criminal in nature.7 [5] Dishonesty is an element of the offence of fraud.8 I make no finding or observation about whether Mr Burch did act dishonestly. However, for the purposes of considering whether Mr Burch has an arguable case in these stay proceedings, it suffices that Mr Burch raises an issue about an essential element of the offence.9 I also note that despite the apparent seriousness of each charge, the learned Magistrate at each of Mr Burch’s appearances has allowed him to remain free without restriction.10 These circumstances of the charges suggest that Mr Burch may have an arguable case on review. [6] To this extent and based on the limited material to date, because Mr Burch may have an arguable case to each charge, I am satisfied that he has an arguable case on review. Does the balance of convenience favour a stay? [7] The Office of Fair Trading submits that the interests of the complainants, Mr Burch’s current and future clients and the public interest outweigh any impact on Mr Burch in not granting a stay. [8] I do not accept that the complainants to the charge will be affected by the granting of a stay. To the extent that the complainants have suffered any loss, that loss has already occurred. Moreover, staying the suspension would merely allow Mr Burch to continue as a private investigator. The charges against Mr Burch are not alleged to have occurred in his capacity 4 Respondent’s Submissions On The Stay Application dated 17 August 2015 at paragraph 47. 5 Black v. Chief Executive, Department of Employment, Economic Development and Innovation [2011] QCAT 27 at [16]. 6 Respondent’s Submissions On The Stay Application dated 17 August 2015 at paragraph 33. 7 Applicant’s Outline of Argument dated 10 August 2015 at paragraph 28. 8 Criminal Code Act 1899, s 408C(1). 9 Black v. Chief Executive, Department of Employment, Economic Development and Innovation [2011] QCAT 27 at [16]. 10 Applicant’s Outline of Argument dated 10 August 2015 at paragraphs 11 to 12. -- 3 of 6 -- 4 as a private investigator. The complainants were not clients of Mr Burch in his capacity as a private investigator. Allowing Mr Burch to operate as a private investigator will therefore not affect the complainants. [9] Similarly, because the alleged conduct did not occur in Mr Burch’s capacity as a private investigator, allowing Mr Burch to continue as a private investigator pending the outcome of his review application is unlikely to affect current and future clients. Given this, the relatively short time for Tribunal review proceedings and that dishonesty is yet to be proven, I am not persuaded that allowing him to continue as a private investigator until the Tribunal reviews his application will “compound the misfeasance further”.11 [10] The Office of Fair Trading also submits that as a private investigator, Mr Burch is held to a higher standard of behaviour due to his inclusion with “those groups serving the public in the maintenance of law and order”.12However, the governing legislation does not cite maintaining law and order as a function of a private investigator.13 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 law and order nor do they have a police officer’s powers of arrest. [11] This does not mean that private investigators should not be held to appropriate standards of integrity and propriety.14 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 commensurate responsibilities and standards of behaviour. [12] Despite these key differences, the Office of Fair Trading submits that the charges directly conflict with a private investigator’s functions15 and granting the stay means that Mr Burch would be on the public register “without any hint of impropriety”.16 Like the learned Member in Featherstone,17 I accept a public interest in maintaining the integrity of a licensing scheme designed to protect the public.18 However, unlike 11 Respondent’s Submissions On The Stay Application dated 17 August 2015 at paragraph 34. 12 Respondent’s Submissions On The Stay Application dated 17 August 2015 at paragraph 41, citing Featherstone v. Department of Justice and Attorney-General, Industry Licensing Unit [2015] QCAT 223 at [18]. 13 Security Providers Act 1993, s 6. 14 Security Providers (Security Firm Code of Practice) Regulation 2008, 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. 15 Respondent’s Submissions On The Stay Application dated 17 August 2015 at paragraph 42. 16 Respondent’s Submissions On The Stay Application dated 17 August 2015 at paragraph 35. 17 Featherstone v. Department of Justice and Attorney-General, Industry Licensing Unit [2015] QCAT 223 at [20]. 18 Bryant v. Commonwealth Bank of Australia (1996) 70 ALJR 306 at 309, per Kirby J; -- 4 of 6 -- 5 Featherstone, Mr Burch has not been charged with offences that are alleged to have occurred in his capacity as a private investigator, nor do they relate to personal safety. Public confidence in the integrity of the scheme is therefore less likely to be undermined. [13] Mr Burch has worked as a private investigator without other incidents of concern for a considerable period of some nine years.19 He is without criminal history or evidence of bad character.20 The public interest is not served by depriving individuals and their families 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.21 [14] While the Office of Fair Trading submits that Mr Burch can “trade on his Debt Collectors Act certificate”,22 no evidence has been adduced of how this income would compare with Mr Burch’s income as a Private Investigator. [15] Similarly, little evidence has been adduced to support the impact of the suspension on Mr Burch. However, the current material suggests that Mr Burch is a 36 year old married man and like many other people, he has a mortgage over his home. He is also seeking to finance his defence to the charges.23 For the purposes of these stay proceedings and in the absence of evidence to the contrary, I am prepared to accept Mr Burch’s evidence that not granting him a stay of his suspension to operate as a private investigator will adversely impact on his finances and cause him substantial detriment. [16] I am therefore satisfied that the balance of convenience favours staying the suspension of Mr Burch’s Private Investigator Licence pending the outcome of his review application. What is the appropriate Order? Harley v. Department of Justice and Attorney-General [2012] QCAT 390 at [21]; Harley v. Department of Justice and Attorney-General [2012] QCAT 620 at [19]. 19 Harley v. Department of Justice and Attorney-General [2012] QCAT 390 at [22]. 20 Applicant’s Outline of Argument dated 10 August 2015 at paragraph 33. 21 Black v. Chief Executive, Department of Employment, Economic Development and Innovation [2011] QCAT 27 at [17]. 22 Respondent’s Submissions On The Stay Application dated 17 August 2015 at paragraph 51, and paragraph 45 where the Office of Fair Trading notes that Mr Burch holds a Field Agent – Sub Agent’s Registration Certificate under the Debt Collectors (Field Agents and Collections Agents) Act 2014. 23 Applicant’s Outline of Argument dated 10 August 2015 at paragraph 26. -- 5 of 6 -- 6 [17] Because Mr Burch has an arguable case and the balance of convenience favours a stay, it is desirable to order that until further order, the decision of the Office of Fair Trading to suspend the Private Investigator licence of Travis Charles Burch dated 1 July 2015 is stayed. [18] In granting Mr Burch’s application for a stay, I emphasise that I have not made any conclusive findings about the alleged behaviour, the circumstances of the charges or the merits of the substantive review. Findings about the circumstances of the charges are appropriately addressed in other proceedings. -- 6 of 6 --