Craddock v Chief Executive, Department of Employment, Economic Development and Innovation

[2010] QCAT 229

CITATION: Craddock v Chief Executive, Department of Employment, Economic Development and Innovation [2010] QCAT 229

PARTIES:	Mr David Craddock Mr Ali Perese
v
Chief Executive, Department of Employment, Economic Development and Innovation

APPLICATION NUMBER:   GAR132-10  

MATTER TYPE: General administrative review matters

HEARING DATE:     Decision on the papers

HEARD AT:  Brisbane

DECISION OF: R Oliver – Senior Member

DELIVERED ON: 12 May 2010

DELIVERED AT:      Brisbane

ORDERS MADE: The decision of the Respondent of 6 April 2010 be stayed until further order

CATCHWORDS :  Application for stay – Queensland Civil and Administrative Tribunal Act section 22; public interest considered; interests of the applicants and financial hardship considered

APPEARANCES and REPRESENTATION (if any):

Decision on the papers

REASONS FOR DECISION

1. Both the Applicants Mr Craddock and Mr Perese hold Security Officer and Crowd Controller licenses being license numbers 3296508 and 3329378 respectively.

1. Both Applicants were employed to undertake security work at Irish Murphy’s Hotel on the corner of Elizabeth and George Street Brisbane on 6 December 2005.  At about 5:15pm both Applicants were involved in incidents with a number of patrons resulting in physical altercations between the Applicants and the patrons.  These altercations involved physical removal from the premises, onto the footbath and onto the roadway with wrestling on the ground and footpath outside the hotel. In particular onto the road in Elizabeth Street where traffic had to divert around them.

1. As a consequence of the Applicants involvement in these altercations, the incidents were reviewed by the Respondent and on 6 April 2010. Mr Rashford, the Principal Probity Review Officer of the Industry Licensing Unit of the Respondent, made a decision to cancel the licenses of the Applicants.

1. Pursuant to section 22(4) of the Security Providers Act 1993 both Applicants have sought a review of that decision in the Queensland Civil and Administrative Tribunal (“the Tribunal”).

Application for Stay of the Decision

1. Pending the hearing of the review application, the Applicants have sought, by application, a stay of the decision pursuant to section 22 of the Queensland Civil and Administrative Tribunal Act 2009 (“the QCAT Act”). Section 22 provides:-

   (1) The start of a proceeding for the review of a reviewable decision under this Act does not affect the operation of the decision or prevent the implementation of the decision.

   (2) However, subsection (1) does not apply if—

   (a) an enabling Act that is an Act provides otherwise; or

   (b) the tribunal has made an order staying the operation of the reviewable decision under this section and the order is still in effect.

   (3) The tribunal may, on application of a party or on its own initiative, make an order staying the operation of a reviewable decision if a proceeding for the review of the decision has started under this Act.

   (4) The tribunal may make an order under subsection (3) only if it considers the order is desirable after having regard to the following—

   (a) the interests of any person whose interests 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;

   (c) the public interest.

The  Submissions

1. Both applicants have filed one (1) application for the stay and rely on the same grounds although there are no statements of evidence in support.  In part C of the application the reasons for stay are summarised as follows:

a)A general dispute as to what the CCTV footage of the altercation discloses and what conclusions can be drawn there from

b)Extreme financial hardship as employment as a security provider are their only sources of income

c)The applicants have no alternative sources of income

d)The incident resulted from significant provocation and the applicants have not been charged with any offences

e)It is alleged that the applicants have complied with all relevant legislation

f)The department has made an error in their identification of some of the participants in the altercation.

1. The Respondent has filed submissions opposing the stay and principally relies on the CCTV footage, which I have viewed, and also the interests of the public.  The Respondent contends that security providers should be experienced in dealing with intoxicated persons and the conduct of the Applicants, in the circumstances of this case as appears from the CCTV footage, does not engender any reasonable expectation that these Applicants would, in the interim, maintain public confidence in persons working in the security industry.  It is contended that the security officers became aggressors in the incident when they should have realised that the patrons, being intoxicated, were vulnerable. 

1. It is not for me to make any definitive conclusions about the contentions raised by both the Applicants and the Respondent as to the circumstances of the incident although it is clear from the CCTV footage that the Applicants did end up on a busy roadway with the patrons on the ground, which exposed both parties to injury.  However, detailed explanations as to what was actually going on which caused them to end up both on the roadway and on the footpath requires further investigation through the hearing process.

1. What is apparent from the CCTV footage is that the patrons involved in this incident, three (3) of them, continuously harassed the security providers which ultimately ended up in the altercation.  This is not necessarily an excuse for the Applicants conduct but it certainly does show significant provocation.

10. Section 22(4) of the QCAT Act does require the Tribunal to take into account the public interest. It also requires the Tribunal to take into account the interest of persons who may be affected by the making of the order.

11. Although the evidence from the applicants is scant, it does appear that with the loss of the licenses, both Applicants will suffer significant financial hardship.  The question is whether this should outweigh the public interest having regard to their conduct.

12. It seems to me, that their licenses having been cancelled, pending the review application, is a salutary warning to them that conduct of the kind demonstrated on the CCTV footage will not be tolerated by the Department.  This, in my view will ensure that the Applicants do not put the public at risk pending the hearing of the application which will be in the near future.

13. If one were to apply the balance of convenience principles, and given their financial circumstances and hardship as a consequence of the loss of license with no alternative employment, it seems to me the balance does favour the granting of a stay pending the hearing of the application for review.

14. Therefore in the circumstances I propose to order that the decision of the department be stayed pending the hearing of the application for review.