Featherstone v Department of Justice and Attorney-General, Industry Licencing Unit [2015] QCAT 223

CITATION: Featherstone v Department of Justice and Attorney-General, Industry Licencing Unit [2015] QCAT 223 PARTIES: Michael Featherstone (Applicant) v Department of Justice and Attorney-General, Industry Licencing Unit (Respondent) APPLICATION NUMBER: GAR079-15 MATTER TYPE: Occupational regulation matters HEARING DATE: On the Papers HEARD AT: Brisbane DECISION OF: Member Gardiner DELIVERED ON: 17 June 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. The application for a stay in these proceedings is dismissed. CATCHWORDS: STAY APPLICATION - where disciplinary decision made to cancel a private investigator’s licence - where the private investigator seeks a stay of operation of the disciplinary decision pending review and the hearing of criminal charges - whether nature of disciplinary proceedings affects circumstances in which a stay is granted Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 22 Security Provider’s Act 1993 (Qld) s 6 Deputy Commissioner Stewart v Kennedy [2011] QCATA 254 The Hideaway Café Bar Pty Ltd v OLGR [2012] QCAT 46 Elliott v QBSA [2010] QCAT 180 Belz v Assistant Commissioner Paul Wilson [2010] QCAT 595 -- 1 of 6 -- 2 Anna Fitzpatrick v All Urban Rentals [2011] QCATA 197 at {2} APPEARANCES: 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 [1] Michael Featherstone has held a private investigator’s licence since June 1996 and has operated a private investigator’s business, Phoenix Global Pty Ltd, since that time. Prior to this, Mr Featherstone had been a Detective Sergeant of Police in the Queensland Police Service. [2] On 19 December 2014, Mr Featherstone was charged with the following criminal offences:  Retaliation/intimidation against a witness;  Attempting to pervert justice; and  Fraud – dishonestly gaining benefit/advantage for value of over $30,000.00 [3] On 13 February 2015, the Chief Executive of the Department of Justice and Attorney-General suspended Mr Featherstone’s private investigator’s licence until the end of the criminal proceedings. The Chief Executive did not suspend the separate private investigator’s licence of the company Phoenix Global. [4] Mr Featherstone applied to this Tribunal to review this decision on 2 March 2015 and to stay of the decision of the Chief Executive suspending his licence. [5] An order to stay the operation of a reviewable decision while the review is underway is made by the tribunal under section 22 of the QCAT Act, particularly sub-sections 22(3) and (4). The tribunal must form a positive view that the making of the stay order is desirable1 and subsection 22(4) requires a consideration of the interests of any person whose interests may be affected; any submission of the decision-maker for the reviewable decision; and the public interest. [6] In support of his stay application, Mr Featherstone submits he is highly regarded, his business has been very successful and that numerous law firms nationwide have instructed him. He says he has no criminal record whatever and the imposition of a suspension will have a significant economic effect on him. 1 Elliott v QBSA [2010] QCAT 180. -- 2 of 6 -- 3 [7] Mr Featherstone says he was immediately granted bail when the matter came before the Magistrate. He says he will contest the charges and has not yet seen the Brief of Evidence. [8] Considerations in the granting of a stay have been previously considered by this Tribunal. In particular, the learned member in The Music Kafe Pty Ltd & Loukaras v Chief Executive, Office of Liquor & Gaming Regulation 2 while referring to any earlier decision3, stated: However, as I discussed in The Hideaway Café Bar Pty Ltd v OLGR, section 22(4) does not prevent the consideration of other relevant factors. The Appeal Tribunal found in Deputy Commissioner Stewart v Kennedy4 that the standard curial principles also apply to govern the exercise of the discretion, in addition to a consideration of those factors in s 22(4). In Kennedy, the Appeal Tribunal considered that other issues to be considered include whether an arguable case has been shown by the applicant; whether the balance of convenience favours the granting of the stay; and whether the refusal of the stay would render a favourable appeal decision nugatory.5 [9] Mr Featherstone further submits that “desirable” in the context of s 22 of the QCAT Act “denotes a positive aspiration or something worthy of achievement”6 and that considerations for QCAT granting a stay of an original decision should be addressed according to established principles: Is it an appropriate case to grant a stay? Does the applicant have an arguable case on appeal? Would a refusal of a stay render the appeal nugatory? Does the balance of convenience favour granting a stay? [10] Additionally, the fundamental principle governing applications for a stay is that the successful party is prima facie entitled to the benefit of the decision in its favour7. [11] Mr Featherstone argues in submissions to the tribunal that:  There are errors apparent in the decision;  The nature and lack of strength of the case against Mr Featherstone;  The consequences for him if a stay is not granted; and  That no public interest is identified by the decision maker requiring the suspension of Mr Featherstone’s licence. [12] While accepting the discretionary nature of the power, Mr Featherstone says the decision maker:  Relied on insufficient and inappropriate material. The decision maker asserts he relied on the “court brief” which Mr Featherstone says has yet to be disclosed. In support Mr Featherstone says the decision 2 [2012] QCAT 217 beginning at para 16. 3 The Hideaway Café Bar Pty Ltd v OLGR [2012] QCAT 46. 4 [2011] QCATA 254. 5 Chief Executive Officer, Department for Child Protection v S (2007) 98 ALD 329 at 331. 6 Belz v Assistant Commissioner Paul Wilson [2010] QCAT 595. 7 Anna Fitzpatrick v All Urban Rentals [2011] QCATA 197 at {2}. -- 3 of 6 -- 4 maker relied on the police document QP9 which is a guide only to the police prosecutor and not evidence, thus acting on incorrect facts.  Failed to state sufficient reasons or any reasons at all. The decision maker merely recites material submissions and does not state reasons. Discretionary matters and protection of the public interest are not addressed;  Failed to disclose material on which the decision was made; and  That more weight should have be given to mitigating factors by the decision maker. He was unable to properly assess the strength of Mr Featherstone’s case without the brief of evidence. The decision maker should have placed greater weight on the consideration that the originating complaint was made almost 2 years prior to the charging. [13] In particular Mr Featherstone argues:  The decision maker had no brief of evidence to test the validity of any charge;  That Mr Featherstone intended to defend the charges;  That Mr Featherstone was otherwise of good character within the industry;  That a suspension serves as a punitive rather than protective imposition against the objects of the Security Act. In the eyes of his clients, a suspension of his personal licence amounts to the publication of his guilt, which he denies;  The absence of any public interest factor. [14] The Chief Executive Officer submits the stay is neither appropriate or justified. The chief Officer submits:  Under section 12B(2) of the Security Act the Chief Executive may obtain information form the Queensland Police Service relating to the possible commission of a disqualifying offence. The information provided concerning Mr Featherstone was about an investigation over an extensive period of time and was detailed;  The Security Act ensures the community is protected from unacceptable behaviour by private investigators and that only persons of acceptable character enter and operate in the security industry;  The licensing of private investigators helps to ensure the privacy of individuals is protected and the community benefits as a whole by ensuring that private investigators are appropriate people;  The alleged conduct of Mr Featherstone in the QPS court brief raises real concerns about his appropriateness to hold a licence;  The charges against Mr Featherstone are very serious and the term of imprisonment associated with each charge is quite significant; -- 4 of 6 -- 5  The fact that Mr Featherstone had not come to the attention of the Chief Executive was weighed in his favour but it was considered that it was in the public interest that the licence be suspended;  No further action would be taken against Phoenix Global Pty Ltd. This will be reviewed after the finalisation of the current charges against Mr Featherstone because the suspension of the company licence may result in financial hardship and the possible termination of current employees working for the firm. There would also be financial hardship to Mr Featherstone if both licences were suspended. Discussion [15] It is accepted that the disciplinary regime provided for in the Security Act is protective. But a private investigator is defined under the Security Act8 as a person who for reward, obtains and gives private information or carries out surveillance about another person, without the other person’s express consent. Because of the often covert actions of a private investigator, that definition alone carries with it a responsibility to the public to maintain confidence in any person licenced under this Act. [16] In Deputy Commissioner Stewart v Kennedy,9 the Appeal Tribunal set aside a stay in a disciplinary matter. A police officer had been dismissed from the police service and this decision was under review. A stay had been granted allowing the police officer to return to duty pending the determination of the review application. [17] After considering stay applications in disciplinary proceedings concerning lawyers, the Appeal Tribunal found there was a public aspect in an application to stay a dismissal of a police officer. [18] As with police officers, private investigators must maintain public confidence. There are some distinctions, but I accept a common thread in these disciplinary systems identified by the Appeal Tribunal10 for those groups serving the public in the maintenance of law and order and I am satisfied that private investigators should be included in this group. [19] As I consider Mr Featherstone’s review application to be in the field of law and order, I am satisfied this characterisation is a relevant consideration. As Mr Featherstone’s acknowledged background11 is the police force and he has been licenced as a private investigator, he would be aware of the powers and privileges of this industry. [20] I therefore do not accept there is no public interest in this matter. Mr Featherstone has been charged with serious offences that go to the heart of his suitability to be licenced as a private investigator. These matters must 8 Section 6. 9 [2011] QCATA 254. 10 Para [34]. 11 Para [31]. -- 5 of 6 -- 6 be tested and the public is entitled to maintain its confidence in other licence holders during that process. [21] I accept that this decision has had an economic effect on Mr Featherstone but it is only his licence that has been suspended, not that of his company. Although his income is reduced, I do not accept on balance that the imposition of the suspension renders the review nugatory. [22] I accept that the only information before the decision maker was the QP9 document and that this is a potentially “one-sided” recitation of facts yet to be proven. I must balance this against the seriousness of the charges laid against Mr Featherstone and the need to protect the public interest. [23] I am not satisfied that in the eyes of his clients, a suspension of Mr Featherstone’s personal licence amounts to acceptance by his clients of his guilt. Mr Featherstone says he consulted numerous law firms nationwide who instructed him. This is an educated client base who understand the legal process, including the role of the QP9 document in proceedings and who should draw no conclusions until the issues are fully ventilated at the trial. [24] I am comfortably satisfied weighing up all of these considerations that a stay should not be granted in this matter and will order accordingly. -- 6 of 6 --