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Queensland Building and Construction Commission v Bloomfield & Anor[2015] QCATA 19

Queensland Building and Construction Commission v Bloomfield & Anor[2015] QCATA 19

CITATION:

Queensland Building and Construction Commission v Bloomfield & Anor [2015] QCATA 19

PARTIES:

Queensland Building and Construction Commission

(Applicant/Appellant)

v

Roofshield Restorations Pty Ltd

(Respondent)

APPLICATION NUMBER:

APL318-14

PARTIES:

Queensland Building and Construction Commission

(Applicant/Appellant)

v

Anthony Bloomfield

(Respondent)

APPLICATION NUMBER:

APL319-14

MATTER TYPE:

Appeals

HEARING DATE:

30 January 2015

HEARD AT:

Brisbane

DECISION OF:

Senior Member Stilgoe OAM

DELIVERED ON:

10 February 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Leave to appeal refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL –OCCUPATION REGULATION – where licensee convicted on indictable offence – where licensee not required to disclose conviction when renewing licence – where licensee applied for change of licence class – where licensee applied for new corporate licence – where new applications required disclosure of conviction – where licensee failed to disclose conviction – where QBCC cancelled licence – where tribunal set aside cancellation – whether grounds for leave to appeal

Queensland Building and Construction Commission Act 1991 (Qld) ss 48, 53B, 108C

House v The King (1936) 55 CLR 499

Lovell v Lovell (1950) 81 CLR 513

Hughes and Vale Pty Ltd v The State of New South Wales (1955) 93 CLR 127

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Pickering v McArthur [2005] QCA 294

Pop v Queensland Building Services Authority [2012] QCAT 388

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

A Freemen of Counsel instructed by Queensland Building and Construction Commission

RESPONDENT:

P Hackett of Counsel instructed by Lawyers Qld

REASONS FOR DECISION

  1. [1]
    Mr Bloomfield has been a licensee since 2002. In November 2010, he was convicted of the offence of extortion. He was sentenced to two and a half years imprisonment, suspended after four months.
  2. [2]
    In each of the years 2010 to 2013 inclusive, Mr Bloomfield renewed his licence. In 2011, while he was in prison, the application for renewal listed his address as that of his partner. Otherwise, the applications were unexceptional.
  3. [3]
    In 2013, Mr Bloomfield applied to change his class of licence. He also signed applications for two new licences for companies in which he was involved. Each of those three applications asked whether Mr Bloomfield had been convicted of any criminal offence in the last ten years. Mr Bloomfield’s partner, Ms Horton, prepared the forms and ticked “no”. Mr Bloomfield signed the declarations that the information was true and correct.
  4. [4]
    Mr Bloomfield’s conviction came to the attention of the Queensland Building and Construction Commission (QBCC). It decided to cancel Mr Bloomfield’s licence. Because Mr Bloomfield was the nominee of Roofshield Restorations Pty Ltd., QBCC also decided to cancel the company licence. Mr Bloomfield and Roofshield applied to review those decisions. On 25 June 2014, a member of the tribunal set aside the QBCC decisions.[1]
  5. [5]
    QBCC wants to appeal those decisions. Because this is an appeal from a decision of mixed fact and law, leave is necessary.[2] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[3]
  6. [6]
    The parties agree that, whether or not a licence should be cancelled is a two-step process under s 48 of the Queensland Building and Construction Commission Act 1991 (Qld). The decision-maker (in this case the tribunal which stood in place of QBCC) first had to decide whether there was an act that falls within the ambit of s 48. If there was such an act, the decision-maker then had to decide whether to exercise its discretion.
  7. [7]
    The parties also agree that Mr Bloomfield’s acts did bring him within the ambit of s 48. By s 48(c), the decision-maker may cancel a licence if the licensee is convicted of an indictable offence. By s 48(j), the decision-maker may cancel a licence if there are facts that demonstrate the licensee is not a fit and proper person.
  8. [8]
    Because the learned Member’s decision involved the exercise of his discretion, the parties also agree that the application for leave to appeal can only succeed if it can be shown that the learned Member acted upon a wrong principle, or made mistakes of fact which affected the decision, or was influenced by irrelevant matters.[4] Just because the Appeal Tribunal might have exercised the discretion differently is not a basis for changing the decision: it must be shown that the decision is plainly unjust or unreasonable, and involved a clear misapplication of the discretion.[5]
  9. [9]
    QBCC identified three grounds of appeal. In broad terms, those grounds are:
    1. a)
      Failing to place sufficient weight on the facts and circumstances surrounding the conviction;
    2. b)
      Failing to consider Mr Bloomfield’s criminal conduct when determining whether to accept his explanation for lodging false declarations; and
    3. c)
      Erring in concluding that Mr Bloomfield and Ms Horton were fit and proper persons to hold a licence.

The facts and circumstances surrounding the conviction

  1. [10]
    Mr Bloomfield was in a business partnership with a Mr Fyfe. Both Mr Bloomfield and Mr Fyfe had a habit of storing cash in the ceiling space of their business premises. Only Mr Bloomfield, Mr Fyfe and Ms Horton knew the cash was there. At some stage, Mr Bloomfield had about $190,000 stored in the ceiling.
  2. [11]
    The partnership dissolved amicably. Some time later, Mr Bloomfield discovered that his cash was missing. He then engaged “motor cyclist enthusiast debt recovery consultants”[6] to recover the money from Mr Fyfe. Mr Fyfe was threatened by those consultants so he went to the police; Mr Bloomfield was charged and convicted.
  3. [12]
    QBCC submits that the learned Member did not give sufficient weight to the circumstances of the offending, the inherent serious nature of the offence or the motivation for the offence. It submits that the learned Member erred in the exercise of his discretion because he acted on a wrong principle and/or he failed to take into account a material consideration. The material consideration is, in QBCC’s submission, that there was evidence before the learned Member which suggested he should not accept uncontroverted sworn evidence at face value.
  4. [13]
    QBCC submits that, when noting Mr Bloomfield’s cooperation and genuine remorse, the learned Member did not place sufficient weight on the serious nature of the offending ‘which involved extorting another person over a period of time…’. QBCC submits that the evidence shows that Mr Bloomfield was prepared to engage in serious criminal conduct in a commercial dispute over money. It submits that the evidence demonstrates the offence was planned, rather than spontaneous. It submits that the District Court’s sentence of two and a half years, taking into account Mr Bloomfield’s previous history, plea of guilty and health problems, means that the inherent serious nature of the offence outweighs any other factors in Mr Bloomfield’s favour. It submits that Mr Bloomfield’s reason for committing the offence were spurious; that despite his statements of remorse, he still felt that Mr Fyfe “got away with it”. It submits that the concealment itself is a serious and concerning factor.
  5. [14]
    From these observations, QBCC then submits that this shows Mr Bloomfield had a tendency to resort to intimidation and threats and a clear disregard for the law if he considers he has been wronged in commercial dealings. QBCC extrapolates that further, submitting that this behaviour has serious implications for how he is likely to react or handle disputes with consumers or other contractors in the future and cannot be ignored.
  6. [15]
    I cannot accept the first of QBCC’s propositions. The learned Member was entitled to consider uncontested sworn evidence as it was presented to him. Dr Yoxall was not called for cross-examination. Therefore, her evidence stands and QBCC cannot now cast doubt on it by suggesting that what Mr Bloomfield told her should be viewed with some circumspection. Matters that are now subject to the QBCC’s lens of speculation were not the subject of cross-examination at the hearing below. Acting on uncontested sworn evidence is acting on the correct principle. The learned Member did not allow extraneous or irrelevant matters to guide or affect him.
  7. [16]
    There is no basis for a submission that the learned Member mistook the facts. There is no evidence that Mr Bloomfield had a “tendency” to resort to intimidation and threats. There is evidence only of one incident. There is no evidence Mr Bloomfield had a general disregard for the law. As Counsel for Mr Bloomfield pointed out, Mr Bloomfield did not take the action in the context of a commercial dispute, he took it in the context of an assumed theft. QBCC may call this a “spurious” motivation but it is the only motivation that was offered to the learned Member. The distinction between a perceived theft and a commercial transaction is, perhaps a fine one, but it is relevant to the question of whether Mr Bloomfield poses a risk to the public.
  8. [17]
    There is evidence that the offence was planned. The sentencing remarks confirm that this was a serious offence. But they are matters which the learned Member considered, in context. There was no evidence to suggest that Mr Bloomfield is likely to employ similar tactics in disputes with consumers or contractors. There was no evidence to suggest that Mr Bloomfield’s cooperation and remorse were not genuine. The facts and circumstances surrounding the offence and the serious nature of the offence are just two factors that the learned Member was required to consider.

Mr Bloomfield’s criminal conduct and his explanation for lodging false declarations

  1. [18]
    Mr Bloomfield told the learned Member that he did not disclose his criminal conviction because he did not think he had to.[7] He also told the learned Member that he did not read the declarations before signing them.[8] Ms Horton, Mr Bloomfield’s business and life partner and the person who filled out the forms, also told the learned Member she did not know she had to disclose the criminal conviction.[9] Dr Yoxall noted that Mr Bloomfield failure to disclose his criminal conviction was not a deliberate attempt to deceive.
  2. [19]
    QBCC submits that the learned Member should have rejected this evidence. It submits that Dr Yoxall’s observation does not take into account the fact that Mr Bloomfield signed a false declaration on three separate occasions. It also submits that her comment does not take into account the fact that Mr Bloomfield was aware of the implications of the conviction on his business and that he was highly embarrassed by the conviction and never wanted to talk of it again. QBCC submits that the learned Member accepted Mr Bloomfield’s lack of transparency, which demonstrated a lack of candour and insight.
  3. [20]
    The learned Member did accept Mr Bloomfield’s lack of transparency.[10] The learned Member described Mr Bloomfield’s behaviour as reckless and inappropriate[11] but he also found: there was no basis for assuming Dr Yoxall’s conclusions were flawed[12]; there was no evidence to suggest that Mr Bloomfield was aware of the contents of the forms[13]; and, without evidence of intent, there was not enough evidence to suggest that Mr Bloomfield was not a fit and proper person[14].
  4. [21]
    The evidence can support the learned Member’s findings. QBCC’s submissions, which attempt to undermine sworn, uncontradicted evidence do not enliven any of the tests in House v The King[15]. The learned Member did not act on a wrong principle. He did not allow extraneous or irrelevant matters affect him. He did not mistake the facts. He did not fail to take into account a material consideration.

Fit and proper persons

  1. [22]
    QBCC submits the learned Member erred in his consideration of this issue because he approached the conviction and the false declarations separately, rather than in combination. It also submits that the learned Member applied the wrong test in law by determining that Mr Bloomfield’s intent – when signing the false declarations – was more important than the fact of the false declarations. QBCC submits that the proper test is whether Mr Bloomfield had an honest belief in the truth of the statements he was making. It further submits that he could not have had an honest belief because he did not turn his mind to the question.
  2. [23]
    It is the last of these submissions which is critical to QBCC’s argument because, once again, it becomes a question of evidence. QBCC concedes that Mr Bloomfield trusted and relied on Ms Horton completing the forms correctly.  Again, there is sworn, uncontradicted evidence to support that finding. QBCC goes on to submit that there was no evidence that Mr Bloomfield’s assumptions were reasonable and there was no evidence of him making any inquiries to ascertain whether there were filled in correctly so that he could form an honest belief.
  3. [24]
    Neither of those propositions was put to Mr Bloomfield in cross-examination.  QBCC submits that, although the explanations were not challenged in cross-examination, that did not mean it was reasonable to accept the explanations in the context of this case.
  4. [25]
    This is the approach QBCC took at the hearing:

It’s about whether or not these people, these applicants, are able to meet their statutory obligations because that’s been cast into doubt because some of the actions that have been taken …

Now, at the same time, information has been provided that shows that they, in some respects, are honest and do have integrity and do deal well in the commercial setting, so there’s the balancing of that …

I don’t know that my submissions really focus on a knowingness about it, but certainly it’s simple – it can’t be the case that a person who is fit and proper will turn a blind eye to whatever they’re signing[16]

  1. [26]
    On this application for leave to appeal, QBCC is asking the appeal tribunal to discount sworn evidence, discount its concession that Mr Bloomfield is honest, has integrity and deal well with people in a commercial setting and overturn the learned Member’s decision solely because the conviction must, in some way, taint that evidence. I do not accept that this is a legitimate basis for overturning the learned Member’s decision.
  2. [27]
    I am not persuaded that the learned Member separated the conviction from the false declarations when considering whether Mr Bloomfield was a fit and proper person. It is, in fact, impossible to separate the conviction from the false declaration. But for the conviction, the declaration would never have been an issue. The learned Member found that the issue of “fit and proper person” needed to be considered in context.[17] He found that the failure to disclose was not surprising but not a sufficient ground for finding against Mr Bloomfield.[18]
  3. [28]
    I do not accept that the learned Member found that intent was more important than the fact of the false declarations. He accepted that the declarations were false but he considered intent was a relevant consideration.
  4. [29]
    When looked at as a whole, the Queensland Building and Construction Commission Act supports the learned Member’s interpretation. Section 108C creates an offence of giving a false or misleading document. Intent is a necessary element of that offence. QBCC did not allege that Mr Bloomfield had committed an offence on s 108C.[19] Section 108C expressly does not apply to offences under s 53B. Under s 53B(1)(b) a person may commit an offence by providing false and misleading documents about financial requirements without taking reasonable steps to make sure the information was not false or misleading. When transacting any other business with QBCC, intent is clearly an important consideration in determining whether a person is fit and proper to hold a licence.
  5. [30]
    As Counsel for Mr Bloomfield pointed out, Mr Bloomfield signed four different forms for submission to QBCC after conviction, none of which called for a disclosure of the conviction. Although QBCC points to three separate instances of breach, an analysis of the facts show a slightly different story. On 28 March 2013, Mr Bloomfield signed an application for a new company licensee. QBSA (as the QBCC then was) wrote to the company, pointing out that its nominee did not hold the necessary class of licence. On 11 April 2013, Mr Bloomfield signed an application to change his class of licence and a revised application for the new company. If, as the learned Member accepted, Mr Bloomfield relied on his partner to fill the first form out correctly, it is a logical conclusion that he would similarly rely on her to complete the paperwork generated through QBCC’s inquiry. If, as happened, Mr Bloomfield as able to renew his licence without reference to the conviction, it is no surprise that he thought he could change licence classes, or operate through a new corporate entity, without disclosing the conviction.
  6. [31]
    The learned Member did not, it is true, detail the circumstances of the offence or dwell on the less palatable aspects of Mr Bloomfield’s conduct. He did focus on whether, in light of the offence, Mr Bloomfield presented a risk to the public. The learned Member took account of the sentencing remarks.[20] He noted the report from Dr Yoxall, a psychiatrist, who opined that Mr Bloomfield was very unlikely to offend again. He noted Mr Bloomfield’s cooperation and remorse.[21] He noted that Mr Bloomfield had not been convicted of any other offences and that, but for this conviction, he had a blame free record.[22] All of these findings can be supported by the evidence.  Again, I am not persuaded that QBCC has demonstrated that the learned Member’s exercise of his discretion was attended by any error that would justify me interfering and substituting my own decision.

General remarks

  1. [32]
    I understand QBCC’s misgivings that this decision is an invitation for licensees to swear false declarations with impunity. I agree that no licensee should take these forms lightly and that no one should be under the misapprehension that correct forms aren’t important, or that swearing a false declaration is not a serious matter. But I consider QBCC’s misgivings are overstated. This case arises from a very particular set of circumstances which are unlikely to occur again. As I have already mentioned, the Act does provide a penalty for providing false and misleading information to the QBCC. Intent is relevant. If there had been positive evidence of wilful or reckless disregard for the truth of the declaration, then, perhaps, QBCC would have taken action under s 108C, which would have sent a significant and serious warning to the industry. 
  2. [33]
    QBCC has pointed out that there is little guidance from the tribunal as to the impact of a criminal conviction on the question of whether a licensee is a fit and proper person. The meaning of fit and proper person is not in dispute. The tribunal has already referred to the meaning given to the phrase in Hughes and Vale Pty Ltd v The State of New South Wales[23] :

The expression “fit and proper person” is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. “Fit” (or “idoneus”) with respect to an office is said to involve three things, honesty knowledge and ability; “Honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it”— Coke.

  1. [34]
    It has also referred to, and adopted, the later statements of the High Court in Australian Broadcasting Tribunal v Bond (Bond Media case)[24] :

The expression “fit and proper person”, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of “fit and proper” cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain context, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.

  1. [35]
    It therefore seems uncontroversial that, if a tribunal is to cancel a person’s licence because of a conviction, the conviction must affect the person’s honesty, knowledge or ability within the profession or discipline. It must be considered within the context of the activities in which the licensee is engaged. The tribunal must also consider whether the conduct is likely to recur or whether the general community can have confidence that the behaviour will not recur.
  2. [36]
    QBCC submits that one of the objects of the Queensland Building and Construction Commission Act is to protect the public. The objects of the Act are not, however, framed in those terms. Section 3 of the Act sets out three objects. The first object, and the one that is relevant to Mr Bloomfield, is to regulate the building industry by ensuring the maintenance of proper standards in the industry and to achieve a reasonable balance between the interests of contractors and the interests of consumers.
  3. [37]
    The type of offence is, of course, relevant. Whether there was a history of the particular type of behaviour before conviction is relevant. Whether there was been subsequent behaviour of this type is relevant. Whether the offending goes to essential requirements for the licence is relevant. There can be no fixed rules about an appropriate time between the offending conduct and the decision to cancel or suspend a licence; it is a matter for the decision-maker’s discretion, taking into account all the facts and circumstances. This case, and decisions such as Pop v Queensland Building Services Authority[25] are authority only for the general principles guiding the exercise of discretion. The actual exercise of the discretion is, in all cases, a matter for the presiding member in light of the particular facts before the tribunal
  4. [38]
    Leave to appeal is refused.

Footnotes

[1] Bloomfield & Roofshield Restorations Pty Ltd v Queensland Building and Construction Commission [2014] QCAT 528 (“reasons for decision”).

[2]  QCAT Act s 142(3)(b).

[3] Pickering v McArthur [2005] QCA 294 at [3].

[4] House v The King (1936) 55 CLR 499 at 504.

[5] Lovell v Lovell (1950) 81 CLR 513.

[6]  Sentencing remarks, page 3 line 57 to page 4 line 1.

[7]  Transcript page 1-30, lines 27 – 28.

[8]  Transcript page 1-34, lines 5 – 32.

[9]  Transcript page 1-50, lines 5 – 16.

[10]  Reasons for decision at [37].

[11]  Reasons for decision at [30].

[12]  Reasons for decision at [18].

[13]  Reasons for decision at [27], [29].

[14]  Reasons for decision at [30].

[15] Supra.

[16]  Transcript page 1-62, lines 11 – 32.

[17]  Reasons for decision at [36].

[18]  Reasons for decision at [37].

[19]  Transcript page 1-56, lines 45 – 47.

[20]  Reasons for decision at [16] – [17].

[21]  Reasons for decision at [17].

[22]  Reasons for decision at [19].

[23]  (1955) 93 CLR 127 at 156 – 157.

[24]  (1990) 170 CLR 321 at 36.

[25]  [2012] QCAT 388.

Close

Editorial Notes

  • Published Case Name:

    Queensland Building and Construction Commission v Bloomfield & Anor

  • Shortened Case Name:

    Queensland Building and Construction Commission v Bloomfield & Anor

  • MNC:

    [2015] QCATA 19

  • Court:

    QCATA

  • Judge(s):

    Senior Member Stilgoe OAM

  • Date:

    10 Feb 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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