Bloomfield v Queensland Building and Construction Commission; Roofshield Restorations v Queensland Building & Construction Commission [2014] QCAT 293

CITATION: Bloomfield v Queensland Building and Construction Commission; Roofshield Restorations v Queensland Building & Construction Commission [2014] QCAT 293 PARTIES: Anthony William Bloomfield (Applicant) v Queensland Building & Construction Commission (Respondent) Roofshield Restorations (Applicant) v Queensland Building & Construction Commission (Respondent) APPLICATION NUMBER: GAR052-14; GAR053-14 MATTER TYPE: General administrative review matters HEARING DATE: 11 April 2014 HEARD AT: Brisbane DECISION OF: Member Walker DELIVERED ON: 25 June 2014 DELIVERED AT: Brisbane ORDERS MADE: Applications allowed. GAR052-14 Pursuant to s 25(1)(b) of the QCAT Act 2009 the following consequential orders are made: 1. The decision of the Respondent dated 13 January 2014 cancelling the Applicant’s nominee supervisor’s licence is set aside. 2. In lieu thereof the Tribunal substitutes its own finding that the Applicant is a fit and proper person to hold a nominee supervisor’s licensc. GAR053-14 -- 1 of 12 -- 2 Pursuant to s 25(1)(b) of the QCAT Act 2009 the following consequential orders are made: 1. The decision of the Respondent dated 13 January 2014 cancelling the Applicant’s company’s contractor’s licence is set aside. 2. In lieu thereof the Tribunal substitutes its own finding that the Applicant is a fit and proper person to hold a company’s contractor’s licence. CATCHWORDS: Occupational regulation – where licences cancelled on the grounds that parties not fit and proper persons – where one party had served a term of imprisonment – where another party was aware that the other party had served a term of imprisonment – where neither party had informed the Commission of the imprisonment – where each party was involved in supplying false declarations to the Commission Queensland Building and Construction Commission Act 1991 (Qld) ss 32, 48 Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 20, 24 Hyde v QBSA [2003] QBT 30 Filippini v Chief Executive Department of Tourism, Fair Trading & Wine Industry Development [2008] QCA 96 Pop v QBSA [2008] QCAT 7654 APPEARANCES and REPRESENTATION (if any): APPLICANT: William Anthony Bloomfield and Roofshield Constructions Pty Ltd represented by Ms K Schwede, Solicitor of Lawyers Qld RESPONDENT: Queensland Building and Construction Commission represented by Ms M Hanlon, Solicitor. REASONS FOR DECISION Background: [1] This hearing deals with two applications to review decisions made by the Respondent to cancel the Applicants’ licences. -- 2 of 12 -- 3 [2] The Respondent’s decision to cancel Mr Bloomfield’s Licence was made on 13 January 2104 on the basis of 2 separate grounds, namely:- a) the Applicant was convicted of an Indictable offence pursuant to section 48(c) of the Queensland Building and Construction Commission Act 1991 (“QBCC Act”); b) the Applicant was not a fit and proper person to hold a Licence pursuant to section 48(j) of the QBCC Act. [3] The decision to cancel the Licence of Roofshield Restorations Pty Ltd was made both on the basis of the actions of Mr Bloomfield and separate actions by his co-director, Ms Horton. [4] The parties both filed written material. [5] For the applicants, both Mr Bloomfield and his fellow director, Ms Horton, were subjected to cross-examination. Nature of Hearing: [6] The nature of this hearing is by way of a fresh hearing on the merits.1 [7] The purposes of the review is not limited to analysing the Commission’s decision but must consider all of the material and exercise the discretion conferred by section 48 of QBSA Act.2 Relevant Statutory Provisions: [8] Section 48 of QBCC Act states as follows:- Cancellation or suspension of licence The commission may suspend or cancel a licence if— (a) the licence was obtained on the basis of incorrect information supplied to the commission, whether or not fraud was intended; or (b) the licence was obtained by fraud or other improper means; or (c) the licensee is convicted of an indictable offence or an offence that, if committed in Queensland, would be an indictable offence; or (e) the licensee is a company and it ceases, for a period exceeding 28 days, to have a nominee holding a licence authorising supervision of building work of the appropriate class or classes; or (f) the licensee is convicted of an offence against this Act; or (h) the licensee contravened a condition to which the licence is subject under section 35 or that is imposed under section 36 on the licensee’s licence; or (i) the licensee owes an amount to the commission and fails to comply with a demand by the commission to discharge the debt; or 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”) s 20. 2 Hyde v QBSA [2003] QBT 30 at 50. -- 3 of 12 -- 4 (ia) the licensee fails to comply with a written request by the commission under this Act; or (j) the commission becomes aware of the existence of facts that, having regard to section 31(1)(a) or (2)(a), or 32(1)(g), or 32AA(1)(d), or 32AB(1)(d)— (i) would allow the commission to refuse to issue the licence if it were now being applied for by the licensee; or (ii) would have allowed the commission to refuse to issue the licence originally. [9] Section 32 of QBCC Act provides as follows:- Entitlement to a nominee supervisor’s licence: (1) An individual is entitled to a nominee supervisor’s licence if the commission is, on application by the individual, satisfied that— (a) the applicant has the qualifications and experience required by regulation for a licence of the relevant class; and (b) the applicant can lawfully work in Queensland; and (c) the applicant is not an excluded individual for a relevant event or a permanently excluded individual; and (d) the applicant is not a banned individual; and (e) the applicant is not a disqualified individual; and (f) the applicant does not have an unpaid judgment debt for an amount the commission may recover under section 71; and (g) the applicant is a fit and proper person to hold the licence. (2) In deciding whether an applicant is a fit and proper person to hold the licence, the commission may have regard to— (a) commercial and other dealings in which the applicant has been involved and the standard of honesty and integrity demonstrated in those dealings; and (b) any failure by the applicant to carry out commercial or statutory obligations and the reasons for the failure; and (c) tier 1 defective work carried out by the applicant, whether or not the applicant received a notice under section 67AH, 67AI, 67AL or 67AM stating a term of ban for the work; and (d) if the person is an enforcement debtor under an enforcement order for an infringement notice offence for this Act or the Domestic Building Contracts Act 2000—whether the person has taken steps under the State Penalties Enforcement Act 1999 to discharge the amount stated in the enforcement order; and (e) any other relevant factor. (3) However, the commission may not have regard to the matter mentioned in subsection (2)(d) if— (a) the person has applied for cancellation of the relevant enforcement order and the application for cancellation has not been finally decided; or -- 4 of 12 -- 5 (b) 28 days have not elapsed since the date of the enforcement order. Approach to decision making under section 48 QBCC Act: [10] I accept the submissions of the Commission in this respect, namely the role of the Tribunal involves a 2 step process. Firstly, the Tribunal must decide whether one or more of the grounds listed in section 48 is made out and any decision in the affirmative with consequently give rise to the exercise of a discretion. That discretion may be exercised so as to suspend or cancel the licence. It is also open to the Tribunal to take other steps such as imposing licence conditions or to take no action at all. ANTHONY WILLIAM BLOOMFIELD – GAR052-14 Conviction for Indictable offence: [11] Mr Bloomfield was convicted on 8th November, 2010 of an offence against section 415(1)(b)(i) of the Criminal Code. Specifically the offence was “demanding property, benefit or performance of services with threat”. The offence was apparently committed on 27 October, 2008 and resulted in Mr Bloomfield being sentenced to a term of imprisonment for a period of 2 years and 6 months. In fact, he spent 4 of those months in actual custody and the remainder of his sentence was suspended. [12] I am satisfied that this, for all relevant purposes, was an Indictable offence. I am therefore satisfied that section 48(c) is applicable and the relevant discretion is enlivened as the first step in the process has been satisfied. [13] I am provided with helpful submissions on behalf of both parties as to the way in which this discretion should be exercised. [14] I am, in particular, satisfied that the discretion needs to be considered within the context of the objects of the QBCC Act which is set out in section 3 which states as follows: Objects of Act The objects of this Act are— (a) to regulate the building industry— (i) to ensure the maintenance of proper standards in the industry; and (ii) to achieve a reasonable balance between the interests of building contractors and consumers; and (b) to provide remedies for defective building work; and (c) to provide support, education and advice for those who undertake building work and consumers. -- 5 of 12 -- 6 [15] Further it is clear that the overriding purposes of disciplinary action is to protect the public.3 [16] I am satisfied that it is appropriate to take into account the sentencing remarks of the Court when Mr Bloomfield was sentenced and that it is not appropriate for the Tribunal to re-visit the whole of the matters surrounding that conviction. To do so at this stage would be a lengthy and expensive business that could not, on any reasonable basis, be justified. [17] Those sentencing remarks indicate that Mr Bloomfield co-operated with the Police. He showed genuine remorse and was unlikely to offend again. In this respect, the evidence contained in the Report of Dr Yoxall4 was accepted. It is further noted that Dr Yoxall has provided an updated Report which supports that conclusion and in particular, the contention that Mr Bloomfield is unlikely to offend again.5 [18] Dr Yoxall was not cross-examined and on that basis I can see no basis for assuming that his conclusions in this respect are floored in any way. [19] The evidence is that Mr Bloomfield had not been convicted of any other matters and indeed, he gave evidence that he had not even committed traffic offences. It is clear that he has not been convicted of any offence since being released from prison. Accordingly, on the face of it, so far as the conviction itself is concerned, I find that it is unlikely Mr Bloomfield presents a risk to the public. [20] This type of approach to the matter has been subject to previous decisions of this Tribunal and its predecessor. One example is a matter of Pop v QBSA.6 In that at [42] Member Byrne noted QBSA in submissions rightly considered that the “power to grant or withhold a Licence is protected, and there is no element of punishment Involved”. The QBSA submissions went on to indicate that the “primary consideration is the protection of the persons with whom the Licensee might deal, primarily consumers which is a submission I adopt. [21] That decision is also authority for the proposition that the issue of how long a party needs to effectively stay out of trouble is a matter for determination within the context of the particular facts.7 [22] Further in that matter, Member Byrne accepted the QBSA submission that the evidence did not conclusively demonstrate what the likelihood of the Applicant re-offending was low.8 [23] The same may be said here in terms of a conclusive finding. Based upon the sentencing remarks of Justice Deardon and on the Reports provided9 3 See Filippini v Chief Executive Department of Tourism, Fair Trading & Wine Industry Development [2008] QCA 96 at [27]. 4 See Respondent’s bundle of Documents – exhibit 1. 5 See Exhibit 7. 6 [2008] QCAT 388. 7 See [51]. 8 See [60]. -- 6 of 12 -- 7 I find that the risk is certainly very low. Indeed the sole evidence appears to indicate that this was a one off offence that did not involve a consumer. While explanations involving the commission of offences could rarely be described as satisfactory here there is simply no evidence from which I would be prepared to conclude that consumers involved in commercial dealings with Mr Bloomfield are any way at risk. [24] In conclusion I am unable to accept that the matter of the conviction alone is sufficient to justify a decision to cancel Mr Bloomfield’s Licence. Fitness and Propriety: [25] The Commission has relied upon a number of matters in respect of this particular head. In the first instance, it deals with the conviction already considered in the context of section 48. In addition to that, the Commission relies upon 3 statutory declarations concerning his criminal convictions contained in Licence Application forms. As I understand it, the fact that the declarations were false is not in dispute. [26] Indeed, at the hearing of this matter, the circumstances of how these declarations came to be falsely made was also not put into dispute, at least not in any convincing way. [27] In essence, each of the relevant declarations was contained within Licence Application forms and dealt with the question of whether the Applicant had been convicted of a criminal offence within the last 10 years. In each form it is uncontentious that Mr Bloomfield answered “no”. It is also uncontentious that the correct answer to each of the questions ought to have been “yes”. [28] Each of the declarations contained a relevant warning pursuant to the Oaths Act 1867. [29] Nevertheless, the only evidence with before the Tribunal in respect of this matter is that the forms themselves were completed by Ms Horton who carried out the bulk of the administrative work for the relevant companies. Mr Bloomfield asserts that he was not aware of the contents of the forms at the time he signed them. There was, at the end of the day, no evidence that could even give rise to a contrary finding. [30] Whilst it was certainly reckless and inappropriate for him to do that the reality is that the practice of signing what may appear to be essentially pro forma documents without reading them is far more common than is perhaps desirable. One would suspect that if this alone was a ground for a finding of lack of fitness and propriety we would have far fewer licensed builders than in fact exist. It is the issue of intent that seems to me to be more important one, particularly when considered in the context of protection of the public. In the absence of any evidence of intent, or perhaps gross negligence, I find that this is not sufficient on its own to give 9 2 reports by Dr Yoxall. -- 7 of 12 -- 8 rise to the conclusion that Mr Bloomfield was not a fit and proper person to hold a Licence. [31] In addition to this, the Commission points to a number of other matters which are appropriate to consider in the context of this sub-section including ‘the avoidance of legal obligations by storing large sums of cash’. [32] This submission obviously dealt with the circumstances surrounding the conviction whereby he admitted to storing a very substantial sum of cash in the ceiling of his business premises. [33] With due respect, this submission was simply not established to the extent that the issue of avoidance of any legal obligation was concerned. The evidence of Mr Bloomfield was that the cash was accumulated while the carrying out activities other than his primary business over an uncertain period of time. There was simply no evidence before the Tribunal which could give rise to a conclusion that this constituted a breach of his taxation obligations. Indeed it may well have been a completely innocuous activities relating to what were effectively hobbies. [34] One may certainly hold suspicions in this respect but it is trite to say that what the Tribunal needs to deal with is evidence. The sole evidence that what presented was that by Mr Bloomfield. One could perhaps infer from his evidence that it was unwise to store large sums of money in this way, but the fact of the storage itself is not sufficient to give rise to a conclusion that there has been any attempt to avoid a legal obligation. [35] In addition, the Commission points to Mr Bloomfield’s failure to advise of his incarceration and conviction. In particular, it refers to the requirement to record certain information in the Licensee Register imposed as a result of section 99 QBCC Act. The height of this submission is really contained in paragraph 61 of the submissions where the following was stated ‘it is submitted that there is therefore an implicit requirement to advise of such conviction should it occur while licenced’. [36] In my view, the submission needs to be considered in the context of the evidence of Mr Bloomfield. He gave evidence and I accept that he was highly embarrassed by his conviction and did his best to keep that as quiet as possible. Given his otherwise impeccable character, such a reaction seems entirely understandable. Further, Mr Bloomfield, in his evidence, clearly indicated that he did not have the detailed knowledge of the workings of the relevant Act. Again, unfortunately, a lack of detailed knowledge of the workings of Acts of Parliament would be very common among most groups of people, licensed builders among them. It would therefore seem unreasonable to require him to comply with something that is nothing more than an implicit requirement if it is that. [37] I certainly accept that Mr Bloomfield failed to demonstrate transparency in respect of this matter. However given his embarrassment and lack of knowledge of his obligations I find that it is not surprising and is not a -- 8 of 12 -- 9 sufficient ground to support a finding that he is not a fit and proper person to hold a Licence. [38] Additionally the Commission submits that a failure to ensure compliance with statutory requirements is an appropriate ground for consideration. In this respect the evidence established that Casey Roof Repair Pty Ltd failed to comply with the formal requirements of a regulated contract pursuant to section 27 of the Domestic Building Contracts Act 2000 and that this failure occurred in 2013.10 This failure related to a “category 1” defect.11 Mr Bloomfield was a Director of that company at all relevant times. [39] Again this matter needs to be considered in the context of the evidence given by Mr Bloomfield and Ms Horton. In essence, the uncontested evidence that they gave in respect of this matter was that they were prevented from complying with the defect because of the actions of the homeowner in that case by failing to allow them access to the property for the purposes of carrying out rectification work. Indeed in my general experience in working in this jurisdiction with the Tribunal such a reaction is not uncommon. When permission to carry out works is refused it can only be done, at the least by committing the civil wrong of trespass. [40] For the purposes of the “fit and proper” provisions of the Act, it therefore seems quite unfair to regard this as a sufficient ground in its own right. Application of discretion: [41] It is to be noted that the Commission’s submissions included the following: criminal convictions would not in themselves render a person to not be fit and proper – particularly where the sentence is completed. In both the Pop (footnote inserted) and Armour (footnote inserted) decisions, where Applicants were held to be fit and proper, no adverse finding was made against either applicant for at least 3 years prior to the review hearing… The situation in this case differs because of the Applicant’s recent false declarations and arguable patterns of failing to comply with statutory contraventions and demonstrated lack of honesty and integrity.12 [42] The issue of the Applicant’s false declarations has been considered and as has been noted there is no evidence that he was aware of making false declarations. Further a reasonable explanation was provided in respect of the failure to comply with statutory conventions. In the circumstances, I am not satisfied that the Commission has demonstrated that there has been a lack of honesty and integrity on behalf of Mr Bloomfield at any time since his conviction – a period in excess of 5 years. [43] In the circumstances, I am satisfied that Mr Bloomfield is a fit and proper person to hold a Licence of the relevant class. 10 See page 44 bundle of documents of the Applicant. 11 See page 88 bundle of documents of the Applicant. 12 See Respondent’s outline at [73] – [74]. -- 9 of 12 -- 10 [44] I therefore propose to set aside the decision of the Commission in respect of Mr Bloomfield. ROOFSHIELD RESTORATIONS PTY LTD – GAR053-14 [45] This matter deals with a lot of the same issues considered with in respect of Mr Bloomfield and in part, the submissions of Commission adopt the submissions are already made in respect of him. I have already found that I do not accept those submissions and that he is a fit and proper person to hold a Licence. [46] In addition, the Respondent submits that Jocelyn Horton, being a Director of RoofShield, was also not a fit and proper person to exercise control or influence over a company that holds a Licence pursuant to section 31(2)(a) of the QBCC Act. [47] It is apparent that the same principles apply in considering whether or not Ms Horton was a fit and proper person and I do not intend to repeat them. [48] It is common ground that Ms Horton was aware of Mr Bloomfield’s conviction from the time it took place. She was his business and personal partner since prior to the time of the conviction. [49] It is submitted on the behalf of the Commission that Ms Horton made a false declaration to the effect that Mr Bloomfield did not have any relevant criminal conviction in a Licence Application form on 18 June, 2013 for AVJ Roofing Pty Ltd. [50] It is further submitted that she was a party to Mr Bloomfield making the false declarations that I have found that he did. [51] It therefore seems uncontentious that Ms Horton has in fact made a false declaration. Further, she has either ignored or failed to take heed of the warning printed on the declaration document. [52] At its highest, the submission of the Commission is to the following effect: The Applicant company’s materials suggest Ms Horton failed, perhaps conveniently, to pay due regard to ensuring the truth and correctness of the three Licence Applications.13 [53] The principal problem with this submission is the evidence of Ms Horton which was to the effect that she failed to note the relevant questions and had not properly read the forms. [54] Whilst one can certainly treat such a response as convenient and perhaps even suspect, the role of the Tribunal to act upon the evidence before it. In reality there is no evidence to the contrary. Indeed, it was not seriously put to Ms Horton in cross-examination that she was failing to tell the truth in answering questions in that way. 13 Respondent’s submissions at [23]. -- 10 of 12 -- 11 [55] Certainly it was negligent of her to fail to ensure that the relevant forms were completed accurately however, establishing a failure to take proper care in the completion of the forms falls considerably short of demonstrating “deficiency in the Applicant’s honesty and integrity”.14 [56] In my view there was simply no evidence before me from which I could conclude that Ms Horton was dishonest or in any way lacked integrity. Ms Horton’s alleged failure to ensure company complied with statutory requirements: [57] The Commission points to section 99 of the QBCC Act that requires the Commission to record certain information in its Licence Register including the details of its nominees.15 [58] Pursuant to section 101 of that Act, changes to this information are required to be notified to the Commission within fourteen (14) days. [59] It is certainly not clear however that either Ms Horton or Mr Bloomfield were aware of their responsibilities in this regard. In any event, for all relevant purposes, one would have significant doubt about whether Mr Bloomfield or Ms Horton would have considered Mr Bloomfield’s time in custody as being a change in his address. He certainly maintained a residence outside. That address was being monitored in a very real sense by Ms Horton and in those circumstances the primary purpose behind section 101 would appear to have been continuously satisfied. [60] At its highest the Commission has demonstrated that, in this respect, Ms Horton and Mr Bloomfield did not have sufficient knowledge of the QBCC Act that would enable them to be aware that they were breaching its provisions. [61] In the event that these provisions are sufficient to enliven the necessary exercise of discretion, I find that these matters fall considerably short of what would be necessary to convince me that the fitness and propriety provisions have application to this case, either in respect of Mr Bloomfield or Ms Horton. [62] I therefore also propose to set aside the decision of the Commission so far as Roofshield Restorations Pty Ltd is concerned. Application for De-identification [63] An order is also sought on behalf of Mr Bloomfield that the proceedings be de-identified so far as he is concerned. The sole reason advanced in this respect is ‘to prevent the public from knowing of Mr Bloomfield’s conviction’.16 14 See Applicant’s submissions at [24]. 15 See section 99(2)(c). 16 See Applicant’s submissions at [74]. -- 11 of 12 -- 12 [64] So far as I can see the criminal proceedings when Mr Bloomfield were not the subject of any such Order. Accordingly his conviction and the circumstances surrounding it is already in the public domain and readily available for any persons who wish to seek it out. In those circumstances the making of such an Order seems fairly fruitless and I do not intend to make it. [65] I note that the Parties wish to be heard on the question of costs. -- 12 of 12 --