Bloomfield & Roofshield Restorations Pty Ltd v Queensland Building and Construction Commission [2014] QCAT 149

CITATION: Bloomfield & Roofshield Restorations Pty Ltd v Queensland Building and Construction Commission [2014] QCAT 149 PARTIES: Anthony William Bloomfield Roofshield Restorations Pty Ltd (Applicants) v Queensland Building and Construction Commission (Respondent) APPLICATION NUMBER: GAR052-14; GAR053-14 MATTER TYPE: General administrative review matters HEARING DATE: 21 March 2014 HEARD AT: Brisbane DECISION OF: Senior Member Oliver DELIVERED ON: 21 March 2014 – (delivered ex tempore) DELIVERED AT: Brisbane ORDERS MADE: 1. Until further order of the Tribunal, the respondent’s decision dated 13 January 2013 is stayed. CATCHWORDS: STAY – LICENCE CANCELLATION – whether applicant a fit and proper person to hold a licence with the respondent – whether arguable case – where balance of convenience favours a stay APPEARANCES and REPRESENTATION (if any): APPLICANT: Karen Schwede, solicitor of QLD Lawyers RESPONDENT: Melanie Hanlon, solicitor of the respondent REASONS FOR DECISION [1] On 13 January 2014, the Queensland Building and Construction Commission cancelled the applicant’s licence because it says that Mr Bloomfield is not a fit and proper person to hold a licence under s 31(1)(a) of the Queensland Building and Construction Act, and also not -- 1 of 4 -- 2 a fit and proper person to be a director of the company on applying s 31(2)(a). [2] The reasons are that Mr Bloomfield, when applying for a licence on his own behalf or on behalf of a company with him as a licensee, made a false declaration in completing the application form by checking the box with respect to the question had he ‘been convicted of any criminal offence (excluding traffic offences) within the last 10 years’. [3] Checking that box ‘no’ and then signing a declaration that the contents of the information contained in the application was true and correct was dishonest. The second ground is that Mr Bloomfield was convicted of an indictable offence of extortion in 2010; was sentenced to a period of imprisonment of 2.5 years, to serve four months, the balance suspended; and ordered to pay compensation of $3,750. [4] Upon his licence being cancelled, he applied to the Tribunal to review that decision and also applied to the Tribunal to stay the Commission’s decision, pending the determination of the substantive review application. [5] The Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’) provides the Tribunal with power to stay an administrative decision under s 22(3). In considering whether to grant a stay, some of the factors to be taken into account include: (a) the interests of any person whose interests who may be affected by the making of the order or the order not being made; (b) any submission made to the tribunal by the decision-maker for the reviewable decision; and (c) the public interest. [6] It is now accepted and there is a body of authority in this Tribunal to support two other factors to be taken into account, and that is whether there is an arguable case, and the balance of convenience. Clearly, in terms of the interests of the person who is affected by the decision, and the applicant is that. [7] He carries on a business as roof restoration, maintenance and repair. In the material filed by himself and Ms Horton, who is a director of the company, some 30 odd people are reliant on work from the applicant, in addition to of course, both himself and Ms Horton generating income from the operation of the business. They are financially stressed, the material discloses. They have bills, mortgages and Ms Horton has a disabled child. [8] The Commission relies on two matters to argue that he is not a fit and proper person. The first is the conviction and the second is the making of a false declaration, which was only made in June last year. [9] Ms Horton has made a statement that she completed the forms for the application for licence on the internet. She checked the relevant box, she printed those forms, and Mr Bloomfield simply signed them. He explains -- 2 of 4 -- 3 her role in the operation of the business. Also, that he did not read the forms before he signed them. Whether that excuses his conduct or not remains to be seen in the review application, but there is an explanation for that and if he did not turn his mind to what was contained in the forms, it is reasonably arguable that that conduct should not be held against him in any material way. [10] Certainly, it was careless, reckless and inappropriate for him to do that, but the explanation is there before me on the stay application and even though one might be sceptical, that is the evidence that I have to consider in determining whether there is an arguable case. [11] The conviction falls within a different category, in my view. It is some six years old. I refer to the sentencing comments of Deardon DCJ, in particular, page 3, line 35 – page 10, line 35. The effect of that is that His Honour found that Mr Bloomfield had an excellent work history, other than this offence, and was otherwise of exceptionally good character. The circumstances of this offence were as a result of poor judgment, and a dispute between him and a business colleague. [12] It is noted in the sentencing remarks that he cooperated with the police, showed genuine remorse and was unlikely to offend again. That latter conclusion is supported from a report from Dr Yoxall. Further an updated report from Dr Yoxall supports the contention that Mr Bloomfield is unlikely to offend again. [13] There must come a time when the consequences of a criminal conviction start to wane in significance. He has received his punishment for that, has served a short period of imprisonment, and has had the balance of the sentence hanging over his head. Even though he is of good character, he clearly remained out of trouble for the balance of the suspended period. I am not making any finding as to whether that does render him not fit and proper to hold a licence, but it is certainly raised as an arguable point in any review application. [14] One matter that does concern me more than any is the balance of convenience. Mr Bloomfield’s licence has been cancelled. He has presumably not been able to work and generate income. Those reliant on him will suffer and that will continue to be the case until there is a final determination of the review application. If the review application is successful and his licence is restored, there will be irreparable harm caused to him and those that rely upon him. [15] The Commission does have a responsibility to maintain public confidence and ensure that the public interest is protected from persons who are not fit and proper. Clearly, the making of a false declaration tells against Mr Bloomfield but, as I have already indicated, there is an explanation for that and whether that explanation properly satisfies the Tribunal on the review application remains to be seen. -- 3 of 4 -- 4 [16] I have come to the conclusion that there is an arguable case as to the circumstances of signing the form and there is an arguable case on the conviction. That, together with the balance of convenience and the likelihood of irreparable harm if the application is successful, leads me to the conclusion that I should grant a stay, pending the determination of the Tribunal. [17] I propose to have the matter proceed expeditiously. I have already informed the parties that the tribunal has dates available in April – on the 11th of April and the 22nd of April. I am happy to accommodate the parties on a suitable date. I am told by Ms Schwede that the 11th of April is suitable and Ms Hanlon has indicated that that would be suitable to the commission. However, I want to be sure that this matter does proceed on the nominated date and that there is no late application for an adjournment. [18] The directions will be that: (1) Until further order of the tribunal, the respondent’s decision, dated 13 January 2014, is stayed. (2) The applicant file two copies in the Tribunal and give one copy to the respondent of any further statements of evidence by 28 March 2014. (3) The respondent file two copies in the Tribunal and give one copy to the applicant of any further statements of evidence in reply by 4 April 2014. (4) The parties must exchange a list of witnesses required for cross- examination by 9 April 2014. (5) The application is listed for hearing at 9.30 am on 11 April 2014. -- 4 of 4 --