COMMISSIONER FOR FAIR TRADING & FELTON (OR 13/23) FELTON & COMMISSIONER FOR FAIR TRADING (OR 13/24) (Occupational Discipline) - [2013] ACAT 47

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

COMMISSIONER FOR FAIR TRADING & FELTON (OR 13/23)

FELTON & COMMISSIONER FOR FAIR TRADING (OR 13/24)
(Occupational Discipline) [2013] ACAT 47

OR 23/24 of 2013
Catchwords: OCCUPATIONAL DISCIPLINE – suspension of security employee licence because of criminal charge - application for interim order for suspension of security licence – application for interim stay of whole or part of the suspension - threshold requirement of disadvantage or harm under section 53 of the ACT Civil and Administrative Tribunal Act 2008 – discretionary power to grant stay - factors relevant to exercise of discretion in a regulatory context: whether there is serious issue to be tried, prejudice if stay is not granted, public interest and public safety, and effect on substantive application if stay is not granted - purpose of Security Industry Act 2003 – absence of criminal record- status of prior traffic offence – applicant’s training and employment history - threshold requirement for stay: disadvantage or harm to applicant – partial stay of suspension of licence, subclasses 1A & 1D –interim suspension of part of licence, subclasses 1B & 1C.

List of legislation: ACT Civil and Administrative Tribunal Act 2008, s.53
Security Industry Act 2003, ss 23 and 29B

List of cases: Commissioner for Fair Trading & Joshua Quinton

[2011] ACAT 10
Soby v Commercial and Private Agents Board (1979) 22 SASR 70
Wade v Commissioner for Fair Trading [2011] ACAT 71
John Morgan and Construction Occupations Registrar
[2011] ACAT 18

Tribunal: Ms E Symons, Presidential Member

Date of Orders: 11 July 2013
Date of ex tempore Reasons: 11 July 2013

AUSTRALIAN CAPITAL TERRITORY )

CIVIL & ADMINISTRATIVE TRIBUNAL ) OR 13/23

RE: COMMISSIONER FOR ACT
REVENUE
Applicant
AND: LUKE GWYNN FELTON
Respondent

TRIBUNAL: Ms E Symons, Presidential Member

DATE: 11 July 2013

INTERIM ORDER

That the suspension of Luke Gwynn Felton’s security licence class 1A and class 1D is stayed aside until 3 October 2013 or until any earlier date the Tribunal orders;

That Luke Gwynn Felton’s security licence class 1B and class 1C is suspended until 3 October 2013 or until any earlier date the Tribunal orders;

The applications are listed for hearing at 9.30am on 19 September 2013 for the purpose of considering whether a further interim order or further interim orders should be made;

Each Applicant is to file and serve any application for a further interim order or proposed consent orders on or before cob 13 September 2013.

IT IS NOTED that Orders 1 and 2 above are made pursuant to Subsection 53(3) of the ACT Civil and Administrative Tribunal Act 2008 and are in place until 3 October 2013 or the Tribunal otherwise orders.

………………………………..

Ms E Symons
Presidential Member

AUSTRALIAN CAPITAL TERRITORY )

CIVIL & ADMINISTRATIVE TRIBUNAL ) OR 13/24

RE: LUKE FELTON
Applicant

RE: COMMISSIONER FOR ACT
REVENUE
Respondent

TRIBUNAL: Ms E Symons, Presidential Member

DATE: 11 July 2013

INTERIM ORDER

That the suspension of Luke Gwynn Felton’s security licence class 1A and class 1D is stayed aside until 3 October 2013 or until any earlier date the Tribunal orders;

That Luke Gwynn Felton’s security licence class 1B and class 1C is suspended until 3 October 2013 or until any earlier date the Tribunal orders;

The applications are listed for hearing at 9.30am on 19 September 2013 for the purpose of considering whether a further interim order or further interim orders should be made;

Each Applicant is to file and serve any application for a further interim order or proposed consent orders on or before cob 13 September 2013.

………………………………..
Ms E Symons

Presidential Member

EX TEMPORE REASONS FOR DECISION

There are two applications before the ACT Civil and Administrative Tribunal (‘the Tribunal’) for interim orders (namely, matters nos. OR 23 of 2013 and OR 24 of 2013) relating to Luke Gwynn Felton’s security industry licence. As the applications are related to each other, the Tribunal heard them together,
In the first application the Commissioner for Fair Trading (‘the Commissioner’) has applied for an interim order pursuant to section 53 of the ACT Civil and Administrative Tribunal Act 2008 (‘the ACAT Act’) that the Tribunal suspend Luke Gwynn Felton’s security industry licence. In the second application Luke Gwynn Felton (‘Mr Felton’) has applied for “the return of my security licence either in full or at least classes 1A & 1D to enable me to work and earn a living to support my family.” These matters were heard on 10 July 2013 and listed for delivery of a decision on 11 July 2013 in relation to each interim application. Ms Kristy Soper, from the ACT Government Solicitor, appeared for the Commissioner. Mr Tim Sharman, solicitor, appeared for Mr Felton.
The Commissioner, by letter dated 26 June 2013 (‘the Notice’), notified Mr Felton of the immediate suspension of his Security Licence (no. 17716002) under section 29B of the Security Industry Act 2003 (‘the SIA’). The Notice states “I have been informed that you have been charged with recklessly inflicting grievous bodily harm on 25 April 2013.”
Mr Felton’s security employee licence is for the period until 27 March 2014 in the following subclasses:
· 1A – patrols, guards, watches or protects property (including cash in transit) ) (paragraph 7(1)(a) of the SIA);
· 1B – acts as a bodyguard (paragraph 7(1)(f) of the SIA);
· 1C – acts as a crowd controller (paragraph 7(1)(h) of the SIA); and
· 1D – guards with a dog (paragraph 7(1)(e) of the SIA).

The Evidence

Mr Felton gave evidence under oath, in the Tribunal.
Mr Felton is aged 27 years. He has four young children aged 7, 4, 2 years and 10 months. He has week-end and school holiday contact with the three oldest children. He, his partner and their 10 month old child reside with his mother.
For just over four years and until 2 May 2013 he was employed by the Attorney General’s Department in their corporate services division. He had submitted his letter of resignation from his public service employment before the incident on 25 April 2013 and it had been accepted. He commenced full time employment as a security employee with Leader Security in May 2013.
In March 2011, as soon as he had completed his Certificate II in Security Operations, he commenced casual employment, which he had previously lined up, with Leader Security and with Sydney Night Patrol (‘SNP’). This casual employment was predominantly in crowd control. Initially, he worked for Leader Security every couple of weeks for three months and then he worked for them on weekends. He worked one shift a fortnight with SNP. He said that he did not have a Year 12 Certificate; he has a Certificate III in Government and a Certificate II in Operations limited to the Security Industry and a Forklift licence.
He earns a weekly base wage with Leader Security of $991.00 net. He has recurrent weekly liabilities of $560.00 being Board - $100.00, Child Support - $90.00, Car Repayment - $220.00, Rental arrears - $120.00, and Bank loan - $30.00. His partner works full time in the child care industry and earns $600.00 net per week. She pays the weekly child care fees for their child.
After receiving Notice of his security licence suspension on 26 June 2013 he had looked into obtaining work in the construction industry. Due to the contact arrangements for his three oldest children he has had their care this week, being the first half of the school holidays. He had not pursued seeking other employment while he has had the children’s care and while the current proceedings have been on foot.
Mr Felton said he had no prior criminal convictions. He had one traffic offence for which a conviction was not recorded.
He told the Tribunal that the biggest disadvantage for him as the result of the suspension of security licence was the loss of income and the duration of time it takes to get another job.
Mr Felton provided the Tribunal with the security footage from the Raiders Club (‘the club’) in Gungahlin of the incident on 25 April 2013, which the Tribunal viewed at the hearing.
He told the Tribunal that at the time of the incident he was acting in self-defence; it was not his intention to cause harm. When Mr Maibala threw a punch at him in the foyer of the club he had moved to his left and used his forearms and hands to deflect Mr Maibala’s hands away from him. He explained that this was part of his training to avoid attacks. It was effective because Mr Maibala did not connect any punches on him and it had given Mr Felton a few moments to react.
Mr Felton said he stepped behind Mr Maibala, put his right arm over Mr Maibala’s upper right arm in front of his shoulder and across his torso to his left shoulder and he used his left hand to grab Mr Maibala’s left wrist and he pulled it up to his left shoulder. He said it was possible that his right arm slipped up to Mr Maibala’s neck but it was not his intention to touch his neck. He had been trained to restrain a person by grabbing that person’s upper body. His training was not to place anyone in a choke hold.
He said there were about five steps from where he was restraining Mr Maibala to the Club’s door. He said Mr Maibala was fighting and resisting him from the moment he had grabbed hold of him and he was straining to get out of the hold. He was pretty certain that Mr Maibala was yelling “let me go” and making straining noises.
He said he needed to have Mr Maibala facing the front of the Club as he reached the door. He stepped and twisted his body around and released his left grip on Mr Maibala. He did not notice any shift in Mr Maibala’s weight or his behaviour at the doorway. Inside the air lock between the Club’s front door and door to the pavement, he took a couple of steps backward and pushed him through the outside door with his right hand. Mr Maibala landed on the pavement. While Mr Maibala was not moving he was not that concerned as he had known of people in Mr Maibala’s situation to feign and then attack the guard when the guard had approached to check that person out. He could hear Mr Maibala breathing. When he saw blood from Mr Maibala’s nose and mouth he went back into the Club and asked a staff member to call an ambulance. He put gloves on and put Mr Maibala into the recovery position so he could maintain a clear airway.
The police had arrived at the scene before the ambulance. The police spoke with him there. He was not arrested. About one or one and half hours later he went to the police station and was released without charge. He subsequently received a Summons to attend court. He has not been placed on bail. He has entered a plea of not guilty to the charge.
He has looked into ways he could more effectively restrain people since this incident and, in hindsight, he said he could have dealt differently with the situation and avoided the outcome.
Mr Felton told the Tribunal that, in his opinion, it was unusual to only have one security guard at the Raiders Club in Gungahlin on Anzac Day, when so much alcohol is served and consumed. He was the only security guard that night at the Club.
He has spoken to his current employer, Leader Security, about the criminal charge, the suspension of his security licence and his application to the Tribunal. He provided the Tribunal with a letter from Leader Security dated 8 July 2013. He said his employer was prepared to continue to employ him full time if he is able to retain one or more of the four classes of his licence.
If the Tribunal is able to stay the suspension of the sub classes 1A and 1D of his licence he would be working patrol and response; that is responding to alarms at specific sites and carrying out scheduled patrols other sites. Being a static guard would involve him protecting property from people. It is possible he could come into contact with people but his experience is that the guard usually chases people found on the site and does not very often catch them. He would not be undertaking security duties at licensed premises or sporting venues. If he was working with a dog, the dog was to protect him.
Mr Felton said, in cross examination, that he is not a violent person; there has not been a complaint about him using excessive force during his two and a half years as a security employee across a wide range of events. He said this incident was very unfortunate; it was a one off event.
The letter from Peta-Lee Henare of Leader Security, relevantly, states:
Luke has approached me to write a reference to be presented at ACAT on Wednesday 10 July 2013.
I am aware that Luke has been charged with Recklessly Inflict Grievous Bodily Harm resulting from an incident that occurred at Raiders Gungahlin on Anzac Day, 25 April 2013.
I have known Luke for the previous two and a half years as his manager and direct supervisor. Luke is a young family man of integrity and honesty.
During the time I have known Luke, he has proven himself to be trustworthy, community-minded and a professional employee.
In recent times, Luke has accepted a full-time position without company as a patrolman working on a four on four off rotation roster. Luke has assisted the police with over thirty arrests where trespassers have been found on our client’s properties.
Should Luke Loss his security licence permanently, his skills and contributions as a patrolman would be a great loss to not only our company, but also the community as he is proactive approach in maintaining public safety and decrease theft in second to none.
Luke has also offered his assistance to others in need. In particular, I recall an incident where Luke assisted a security guard at the Canberra Centre that was being beaten by a member of the community. He risked his own life and sustained injuries in order to protect another security guard (not a Leader employee).
We have never received any complaints in relation to Luke’s performance or the way he carries out his duties.
Whilst Luke was re-active in the incident that occurred on 25 April 2013 and had no intention whatsoever to cause harm to the patron, he would like to take responsibility for his actions and move forward with his career and life.
I do not believe Luke is a danger in our industry or to the community and feel that his actions in these circumstances were to protect his safety as well as the safety of others.
Luke showed empathy to the injured patron by carrying out first aid and staying by his side until the relevant authorities arrived. Luke has expressed his sadness to me following the incident.
We would continue to employee Luke as a full time patrolman should he be able to retain his security licence.
If you wish to confirm any of the above, please do not hesitate to contact me on…..

Submissions

The Commissioner for Fair Trading

The Commissioner seeks an interim suspension order and opposes Mr Felton’s interim application for a stay of all or part of the suspension of his security licence.
Ms Soper submitted that the Commissioner would be disadvantaged if the interim order suspending Mr Felton’s licence was not granted as the Commissioner’s ability to carry out its statutory function of maintaining public safety as it is connected to the security industry will be compromised. The obligation to maintain public safety arises out of the Commissioner’s responsibility to regulate the security industry.
The Commissioner relies on the outline of the allegations in the AFP Statement of Facts that support the criminal charge brought against Mr Felton of ‘recklessly inflict grievous bodily harm’. This is an offence under section 20 of the Crimes Act 1900, an indictable offence, a very serious charge and a ‘relevant offence’ for the purpose of determining whether it is in the public interest for Mr Felton to be licensed under section 23(1) of the SIA. The charge enlivens three grounds of occupational discipline. The offence is directly relevant to Mr Felton’s eligibility for a security licence. The Commissioner is not satisfied that Mr Felton should be licensed until the outcome of the criminal charge is known.
In relation to Mr Felton’s interim application, Ms Soper submitted that the video footage was particularly concerning as it showed the hold Mr Felton used; it showed Mr Maibala go limp when he was not a risk and it showed Mr Maibala being forcibly ejected from the Club premises when he was not a risk. The Statement of Facts showed Mr Maibala sustained very serious and permanent injuries. It is relevant and essential that a security guard deal with a range of patrons; this is at the heart of the function of a guard. In relation to self-defence, Ms Soper submitted that the force used by Mr Felton may not have been proportionate to the threat perceived at the time.
She submitted that there was not enough evidence for the Tribunal to be satisfied that there will not be another incident if Mr Felton’s suspension is partially or fully stayed.
Mrs Soper said she accepted that the risk would be lower for a static licence, but nevertheless there is still a risk.
Ms Soper submitted that Mr Felton has other qualifications and other options of obtaining another job. She submitted that he appeared to be saying that it was more of an inconvenience to him having to find another job, rather than causing him harm.
Mr Felton
For the most part, Mr Sharman conceded that the Statement of Facts was accurate save for the description of the incident and the injuries. Mr Felton’s Committal Hearing is set down for 8 August 2013. Mr Sharman said he has not yet received the brief of evidence. However, he conceded that there was no doubt that Mr Maibala sustained serious injuries. He invited the Tribunal to look at the video footage and to consider the description of the incident in the Statement of Facts in the light of the actual footage of the incident.
He urged the Tribunal to find that this incident rises and falls on its circumstances. While conceding that it is open from the security footage to see that Mr Maibala loses consciousness; he said that this was not something Mr Felton could foresee. Mr Felton’s evidence was that he did not realize that Mr Maibala was unconscious.
Mr Sharman submitted that it was significant, given that public interest and safety was the basis for the Commissioner’s actions, that Mr Felton has no prior convictions; he has no charges since the incident; he has co-operated with the Police at the time of the incident and since; he has not been placed on bail conditions; there is no danger in any capacity to members of the public; and his actions were entirely proper and consistent up to his restraining Mr Maibala.
In relation to the incident, Mr Sharman submitted that it is a one off incident; it does not disclose Mr Felton has a propensity for violence. The incident was very unfortunate and unintended. His actions, as seen on the video footage, display no malice, before, during or after the incident. Allowing for the fluidity of the situation and with the benefit of hindsight Mr Felton’s actions can be seen as clumsy. It would be a significant punishment to continue the suspension prior to any decision by the criminal court as to whether there should be a conviction and a penalty.
Mr Sharman urged the Tribunal to find that, in all of the circumstances, the real question is why should Mr Felton have to find other employment. He chose this career for his livelihood; he earns a modest income and has significant debts. He has offered to perform work which will rarely bring him into contact with the public, other than offender/s; his role will be to act as a deterrent.
He submitted that in the absence of any other criminal record, public interest does not dictate the full suspension of Mr Felton’s security licence.

Consideration

Both interim applications are brought under section 53 of the ACAT Act. Section 53 of the ACAT Act gives the Tribunal a power to make interim orders to protect the position of a party to proceedings before it. Subsection (1) of section 53 of the ACAT Act sets a threshold that must be met before the Tribunal’s power is enlivened.
The Tribunal considered the ‘threshold’ in John Morgan and Construction Occupations Registrar [2011] ACAT 18 (‘the Morgan case’) General President Crebbin stated[1]
7. The tribunal must be satisfied that if an order were not made before the substantive application is heard, the party applying for the order would be disadvantaged or suffer harm. This is a threshold requirement. If it is met, the tribunal has a discretionary power provided by subsection (53)(2) of the ACAT Act to make an order that it considers appropriate to protect the position of the party that applied for the order. The tribunal’s discretion under subsection (53)(2) of the ACAT Act goes to both the making of the order and to the terms of the order.
8. The threshold requirement is established by a finding that the evidence before the tribunal establishes that the applicant would be disadvantaged or suffer harm if an order was not made. It is for the applicant to satisfy the tribunal of the requirement.
[1] Paragraphs 7 and 8

President Crebbin noted that the words ‘be disadvantaged’ and ‘harm’ are not defined in the Tribunal’s legislation and stated[2]
......They bear their ordinary meaning. ‘Harm’ requires the applicant to demonstrate something in the nature of an injury, loss or damage. ‘Disadvantage’ comprehends that the applicant would be affected unfavourably, or placed in an unfavourable position, or have some barrier or impediment placed in the way of their advancement.
The threshold requirement is not a high barrier. The legislation does not require that the harm or disadvantage be serious or significant. However, a finding that an applicant would be disadvantaged or would suffer harm requires the tribunal to be satisfied of something more than mere inconvenience.
If the threshold requirement is met, the tribunal has discretion to make an appropriate order........
[2] Paragraphs 9, 10 and 11
Mr Felton seeks a stay of the whole or part of the suspension. In the Morgan case General President Crebbin referred to the exercise of the discretion in stay applications and stated “the exercise of that discretion should, in my view be informed by the substantial body of jurisprudence relating to the exercise by tribunals and courts of powers to grant stay orders.
President Crebbin then set out the following four factors to be considered by the Tribunal in a regulatory context:
(i)whether the material before the Tribunal indicates that there is a serious issue to be tried on the substantive application;
(ii)whether any prejudice would be suffered by any party if a stay was not granted;
(iii)whether public safety or the public interest would be imperilled if a stay is granted; and
(iv)whether the substantive application would be pointless or rendered nugatory if the stay is not granted.
The last three factors can be characterised as related to a broader consideration of the balance of convenience[3].
[3] See re Snook and Civil Aviation Safety Authority 109 ALD 122 and the cases cited therein
The Tribunal’s focus must be on the exercise of the Tribunal’s statutory power given by section 53 of the ACAT Act.
In Commissioner for Fair Trading & Joshua Quinton[4] (‘Quinton case’) the Tribunal considered the public interest test and stated [5] that the fact that the Tribunal must in terms of our legislation take into account criminal convictions (although not traffic convictions) is a vital part of this equation. The Tribunal then referred to Walters J’s observations in Soby v Commercial and Private Agents Board[6] which set out the principles which regulatory bodies that granted licences had to take into account:
“…it seems to me that the object of the legislation is twofold: first to grant, regulate and supervise the conduct of those who engage in the sort of work falling within the ambit of the Act, and, secondly, to ensure that those to whom licences are granted are persons of probity who have the capacity to carry out the duties and responsibilities with which licences invest them.”
“Any member of the public engaging the services of, or having business dealing with, a person holding a licence as a commercial agent, a commercial sub-agent or a process server, is entitled to expect that person to be of good standing in the community and to possess sufficient skills, experience and proficiency to enable him to discharge the functions which he is licensed to perform.”
In the Quinton case, which concerned an application for a security licence, the Appeal Tribunal rejected a view that the interest of the public should be interpreted to include consideration of an individual right to work.
[4] [2011] ACAT 10
[5] at paragraph 50
[6] (1979) 22 ASR 70 at 74
In Wade v Commissioner for Fair Trading[7], the Tribunal also considered an application for a security licence for a crowd controller and the public interest. Mr Wade had an extensive prior criminal history and the Tribunal was satisfied that it was not in the public interest to issue Mr Wade with a licence given this extensive criminal history which would undermine his credibility, his authority, confidence in his reliability and in his ability to appreciate the seriousness of the offending behaviour of others.
[7] [2011] ACAT 71
Mr Felton gave his evidence in an open and honest way. He does not have any prior criminal convictions. He was an impressive witness. The letter from his employer sets out his attributes in some detail. He is clearly a valued and valuable employee. The Tribunal had no hesitation in accepting his evidence. It was not challenged.
Having considered the evidence presented and the submissions made, the Tribunal is satisfied that Mr Felton would be disadvantaged or would suffer harm if an interim order was not made staying the suspension order relating to class 1A and Class 1D of his security licence. The threshold requirement of section 53 of the ACAT Act is met and the power that the Tribunal has under section 53 to make a stay order is enlivened.
I am satisfied that the Commissioner would be disadvantaged or would suffer harm if an interim order was not made suspending sub class 1B and sub class 1C of Mr Felton’s security licence. I am also satisfied, in these circumstances, that Mr Felton would not be disadvantaged or would suffer harm if an interim order was made suspending class 1Band 1C of his security licence. Compliance with this part of the suspension does not tip the balance of convenience in Mr Felton’s favour.
It is clear from the material before the Tribunal that there is a serious issue to be tried on the substantive application. There is an issue that goes to the power of the Commissioner, the circumstances in which that power should be exercised, and what an appropriate exercise of such a power is. These are all serious and complex matters. Ultimately the final determination of this issue may need to be delayed until the criminal charge has been finalised.
For the reasons set out above, the Tribunal is satisfied that Mr Felton would suffer prejudice if the partial stay sought by him was not granted.
I am not satisfied, from considering all of the matters before the Tribunal, that the public safety would be imperilled by partially granting Mr Felton a stay of the sub class 1A and 1D suspension.
The Tribunal is satisfied that the substantive application would not be made pointless or rendered nugatory by the Orders it proposes to make.
Each application for interim orders is partially successful.

………………………………..

Ms E Symons
Presidential Member

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A FILE NO: 13/23; 13/24

13/23
APPLICANT: COMMISSIONER FOR FAIR TRADING
RESPONDENT: LUKE GWYNN FELTON

13/24
APPLICANT: LUKE GWYNN FELTON
RESPONDENT: COMMISSIONER FOR FAIR TRADING

COUNSEL APPEARING: APPLICANT:

RESPONDENT:

13/23

SOLICITORS:

APPLICANT: ACT Gov Solicitor, Ms K Soper
RESPONDENT: Mr T Sharman

13/24
SOLICITORS: APPLICANT: Mr T Sharman

RESPONDENT: ACT Gov Solicitor, Ms K Soper

TRIBUNAL MEMBER: MS E SYMONS Presidential Member

DATE OF HEARING: 10 & 11 July 2013 PLACE: CANBERRA

DATE/S OF DECISION: 11 July 2013 PLACE: CANBERRA

PART B

RECOMMENDATION:

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )

COMMENTS: