Fryar v Queensland Building and Construction Commission

[2014] QCAT 299

CITATION: Fryar v Queensland Building and Construction Commission [2014] QCAT 299

PARTIES:	Wade Fryar (Applicant)
v
Queensland Building and Construction Commission (Respondent)

APPLICATION NUMBER: OCR196-13

MATTER TYPE: Occupational regulation matters

HEARING DATE: 26 May 2014

HEARD AT: Brisbane

DECISION OF: Member Howe

DELIVERED ON: 30 June 2014

DELIVERED AT: Brisbane

ORDERS MADE:	The decision of the Commission made 17 July 2013 to refuse the applicant’s application for a Structural Landscaping contractor’s licence is confirmed.
CATCHWORDS:	Contractor’s licence – fit and proper person – criminal offences – term of imprisonment – corrupt payments – offences committed in the workplace – psychological assessment and report – period post sentence – consideration of the particular licence sought

APPEARANCES and REPRESENTATION (if any):

APPLICANT: Wade Fryar represented himself

RESPONDENT: Ms Farthing, Solicitor, represented the Queensland Building and Construction Commission

REASONS FOR DECISION

1. Mr Fryar applied to the Commission on 3 June, 2013 for a Structural Landscaping contractor’s licence.  The Commission refused that application on 17 July, 2013.  The critical basis of refusal was that Mr Fryar was not a fit and proper person to be granted a contractor’s licence. 

2. Between 2003 and 2007 Mr Fryar was a regulatory compliance officer with the Parramatta City Council in Sydney.  His role required inspection and regulation of brothels.  Between 2004 and 2007 he engaged in corrupt conduct by taking cash bribes from brothel owners amounting to some $40,000 and took free sexual favours.  On 12 March, 2010 he was convicted in the District Court on 5 counts of corruptly receiving benefits.  He was sentenced to 2 ½ years imprisonment with a non-parole period of 15 months and fined $15,000.  He was granted parole after serving his non-parole period.  For the last 6 months of his sentence he was granted weekend release.  Between being charged and sentenced he studied for and completed a Certificate III in Horticulture and Landscaping.  During his sentence he studied Landscape Design on a work release program.  The Commission concluded he was not a fit and proper person to hold a contractor’s licence because his actions as a regulatory compliance officer with the Council demonstrated a standard of honesty and integrity which fell below the standard expected of a licensee.

The Evidence

1. Mr Fryar relied on a letter to the Tribunal dated 7 December, 2013 with certain annexures attached as a statement of evidence.  One of the annexures to his statement of evidence was a letter from his wife written in support of her husband.  She said her husband had been diagnosed as suffering from bipolar 2 disorder, post-traumatic stress disorder and ADHD after his arrest in February 2007.  In the letter she said after his diagnosis her husband had worked closely with psychiatrists and psychologists and commenced taking prescribed medicines.  She said after his release from prison he employed certain management techniques taught to him by his doctors and he remained on medication to manage his bipolar disorder under the guidance of his local general practitioner.  She said she and her husband both felt that after approximately 6 months post release from prison there was no further benefit to him in seeing his psychologist on a regular basis.  She and her husband continued to monitor the situation and, should they feel he exhibited any signs of change, they intended to seek comparable treatment in Brisbane.  After nearly 14 years of marriage, despite significant ups and downs, she saw no reason why their marriage or current lifestyle was not sustainable.  Mr Fryar was responsible for daily care of their children after school and assisted the children with homework and he cooked dinner.  Self-employment for her husband would provide the family with flexibility.  Additionally she described him as having many artistic and technical skills which he was not utilising in his current employment.

2. A statement from Mr Fryar's mother-in-law was also annexed to the letter of 7 December, 2013.  She talked about the strong support provided to Mr Fryar from his wife, his parents and siblings, and her husband and herself and Mr Fryar's close friends. 

3. Mr Fryar moved from New South Wales to Queensland in September 2012 and took up work with his present employer in October 2012.  In a letter to the Commission dated 30 June, 2013[1] Mr Fryar stated his employer was fully aware of his criminal history and his employer had never expressed concerns about his honesty or integrity.  Mr Fryar said he had not sought a reference from his employer because he did not wish to jeopardise his full-time employment position should the employer become aware he was looking to obtain a contractor’s licence to start his own business.  In consequence there is no supporting statement or document from the employer showing the employer is aware of Mr Fryar's criminal history.  There is a letter from Mr Fryar's employer, Logan Landscapes, dated 18 September, 2013 annexed to the letter of 7 December, 2013 wherein Mr Fryar is described as being a pivotal part of the landscaping company’s business.  That letter however is addressed "To Whom It May Concern Queensland Courts" and merely sought his exemption from jury service in October 2013. 

   [1]Exhibit 2 p48.

4. Mr Fryar provided the Commission with a copy of a Neurophysiology, Neuropsychology and Psychology report of Dr Donald Rowe drawn following examinations in early 2007 and then again in early 2010 prepared for the purpose of sentencing in the criminal proceedings in the District Court.  Dr Rowe diagnosed Mr Fryar as having post-traumatic stress disorder, bipolar spectrum disorder and attention deficit disorder.  Dr Rowe gave his opinion that ‘if Mr Fryar continues to participate in a comprehensive and ongoing treatment program, the risk of relapse and his involvement in further illegal activities would be negligible, particularly given the support from his wife and family’.[2] 

   [2]Exhibit 2 p68 at [43].

5. Mr Fryar gave evidence in cross-examination.  He said he was presently on medication and would be on medication for the rest of his life.  He had started medicating in 2007.  He said he suffered no side-effects from taking the medication which might lead him to desist from its use.

6. The report from Dr Rowe is 4 years old.  Mr Fryar was asked whether he had tried to obtain update reports.  His response was he had not lapsed in his behaviour since 2007, the suggestion being perhaps that an update report would be of little value.  Further, he said such reports cost thousands of dollars.  Also a further report would have taken months to arrange and there wasn’t sufficient time to do that given the timetable set for the Tribunal hearing.  Concerning the timetable, at a compulsory conference in the Tribunal on 7 November, 2013, an order was made that Mr Fryar file all documents relevant to his application including specifically medical reports updating his medical condition and any other submissions or evidence he wished to submit to support his application by 13 December, 2013.  Mr Fryar did not attend that compulsory conference.  A copy of the order was forwarded to him.  If he had attended he could have asked for such time as he suggests was necessary to obtain the update.  Regardless, I do not accept an update medical report was unobtainable.  There is no indication Mr Fryar reasonably investigated the possibility of obtaining such further report.  He could have sought an extension of time to comply with the Tribunal order of 7 November, 2013.  It was on this basis I determined at hearing not to grant Mr Fryar further time post-hearing to then seek it.

The Law

1. By s 31(1) of the Queensland Building and Construction Commission Act 1991 (the Act) an individual is entitled to a contractor’s licence if the Commission is satisfied that the applicant is a fit and proper person to hold a licence. By s 31(1)(3) of the Act in deciding whether a person is a fit and proper person to hold a contractor’s licence the Commission may have regard to a number of factors listed including commercial and other dealings in which the person has been involved and the standard of honesty and integrity demonstrated in those dealings and also any other relevant factor may be taken into account.

2. The objects of the Act include the regulation of the building industry to ensure the maintenance of proper standards in the industry and to achieve a reasonable balance between the interests of building contractors and consumers.[3]

   [3]The Act s 3(a).

3. There have been many decisions concerning the expression "fit and proper person" as used in the legislation.  As remarked by Toohey and Gaudron JJ in Australian Broadcasting Tribunal v Bond:

   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 contexts, 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.[4]

   [4](1990) HCA 33 at [36].

4. As pointed out by Olsson J in Petracaro v Commissioner of Consumer Affairs however, which involved a bricklayer stonemason applying for a contractor’s licence:

   It cannot be stressed too strongly that the Act is not preoccupied with general character aspects, except to the extent that these may directly be relevant to the clear purposes of the statute, which essentially focus on the fitness of a person to discharge the responsibilities applicable to a particular type of licence.  The statute is primarily concerned with the protection of the public by ensuring that building work is not carried out by persons who are not suitably skilled or who are, or are likely to be, dishonest with those with whom they enter into contracts.  It goes without saying that, in the case of a subcontract bricklayer who usually gives a firm price to a builder for quite specific work, is to be assessed mainly on his reliability and skill to do the job, whereas in the case of a category 1 building contractor the public concern must relate not only to technical ability but also general trustworthiness and honesty in negotiating and discharging contractual obligations.[5]

   [5](1994) 62 SASR 387 at 390.

5. His Honour also repeated certain comments he had made in an earlier similar decision in which he had said:

   … Quite clearly the nature and seriousness of previous convictions will necessarily vary considerably in their importance, as well as the weighting which ought properly to be attributed to them, bearing in mind the significance which those convictions must necessarily have in relation to the type of work envisaged by the particular licence sought….  And of requiring an applicant to demonstrate a significant period of good behaviour following relevant convictions before acceding to an application for a licence.[6]

   [6]Ibid at 391.

6. Accordingly, of relevance to Mr Fryar's application, is the type of licence sought; the significance of his past convictions associated with conduct engaged in the workplace; the period of good behaviour following those convictions and evidence of rehabilitation; if one accepts the medical evidence prepared for his sentencing in the New South Wales District Court, whether his medical conditions are controlled and have no or little prospect of reoccurrence; generally on the evidence adduced whether the general community may feel confident that the previous improper conduct will not re-occur.

7. Mr Fryar's offences in New South Wales were serious.  They occurred in his workplace.  They occurred over an extended period of 3 years.  He took corrupt payments totalling approximately $40,000 from brothel owners and also received free sexual favours.  At the time of the conduct he was the team leader of compliance services of Parramatta City Council.  He had three compliance officers under his supervision.  On occasions when team members undertook surprise inspections of premises Mr Fryar telephoned ahead to let the operators know an inspection was about to occur.  He made arrangements to protect premises given notice to cease unauthorised use of premises by his employer in exchange for money and sexual favours. 

8. According to Dr Rowe the Neuropsychologist, Mr Fryar was afflicted with post-traumatic stress disorder, bipolar spectrum disorder and attention deficit disorder.  Of the three he concluded that the bipolar spectrum disorder (BSD) was the disorder which had led to his more clinically significant problems and legal predicaments.[7]  His diagnosis must be placed in the appropriate context however.  Later in his report Dr Rowe commented

   I am not saying that Mr Fryar did not know that the acts which he was participating in were wrong, but rather at the time he did not consider the potential consequences of his actions, but rather would satisfy his immediate impulses and compulsive desires associated with his hypomanic behaviours.  In my opinion, at other times it was probably an underlying fear and heightened state of arousal that motivated him to accept bribe money.[8]

   [7]Exhibit 2 at p243.

   [8]Ibid at p247.

9. Mr Fryar said in evidence that he had been on medication since 2007.  He had changed medication from that initially prescribed to the medication currently taken which did not have any side-effects.  He said he would be on that medication for the rest of his life.  In his wife’s statement she comments that since his release from jail Mr Fryar had employed management techniques taught him by his doctors and he had remained on medication to manage his bipolar disorder under the guidance of a local general practitioner.  She said both of them felt that 6 months after release from prison there was no further benefit to him in seeing a psychologist on a regular basis.  The situation was being monitored by both of them and should they feel he exhibited signs of change they intended to seek comparable treatment in Brisbane.[9]  I have no independent medical evidence before me concerning the current medication and its effectiveness in controlling Mr Fryar's diagnosed conditions.  I have no updated reports from Dr Rowe or other psychologist or psychiatrist concerning Mr Fryar's present condition or current prognosis.  According to Dr Rowe in his 2010 report, if Mr Fryar continued to participate in a comprehensive and ongoing treatment program, in his opinion then the risk of relapse and his involvement in further illegal activities would be negligible.  There does not appear to be any such comprehensive and ongoing treatment program currently in place, other than Mr Fryar consults a local general practitioner.

   [9]Exhibit 3 Annexure A.

10. Given Mr Fryar’s illegal activities were discovered in about 2007 and he was not sentenced until 2010, and then not released until mid-2011, in my opinion there has not been significant expiry of time between the release from prison and his application to the Commission for a structural landscaping contractor’s licence.  That application was made on 3 June, 2013.  That is a period of 2 years.  If one considers the period from end of sentence and parole during which there was a measure of supervision of his conduct, admittedly limited (reporting once monthly), it is something in the order of only 9 months.  In my opinion that does not demonstrate a significant period of good behaviour following relevant convictions upon which reliance may be placed.

11. Mr Fryar states that he is in a position of responsibility with respect to his present employment where he is employed as a manager/foreman.  The only evidence directly from that employer provided the Tribunal is a letter written to Queensland Courts asking that Mr Fryar be excused from jury duty.  There is no indication that his employer knows of his offences in New South Wales and has employed him with that understanding.  I note the only character references tendered are from Mr Fryar's relatives.

12. Mr Fryar's wife is independently employed and the move from Sydney to Brisbane was triggered by a promotion she received through her employer.  Her evidence[10] is that the contractor’s licence for her husband would provide their family with flexibility, apparently to make it easier for him to care for their children.  It would appear Mr Fryar's application is not primarily based on financial distress.

    [10]Ibid.

13. There is little information provided as to the work normally associated with a contractor's licence in the class of structural landscaping.  It is clear however that Mr Fryar would be an independent contractor entering into contracts with members of the public.  That would require at minimum general trustworthiness and honesty in negotiating and discharging contractual obligations.

14. The question whether a person is fit and proper is one of value judgement by the decision maker.[11]  On the material presented by Mr Fryar in support of his application I am unable to conclude that he is a fit and proper person to hold a contractor's licence.  I am hesitant to accept, without expert evidence in confirmation, that his brain function abnormalities are as easily and effectively controlled as he and his wife suggest, nor that his current treatment program is adequate.  But in any case, the period between release from prison and parole and making the application to the Commission for a contractor's licence is too short in all the circumstances.  It is too short to persuade me that the general community could have confidence that his previous improper conduct would not occur again in a work environment involving contracting with members of the public and completing contracted works as agreed.  The offences for which he was imprisoned occurred in his work environment.  That is significant.  They were grave offences involving dishonesty and subterfuge, abuse of position and trust, and they occurred long term over a number of years.  There may well come a time when Mr Fryar is able to demonstrate a significant period of good behaviour such that the general community could have confidence that his previous improper conduct would not occur again.  It is not now with this application however.

    [11]Australian Broadcasting Tribunal v Bond (1990) HCA 33 at [63] per Mason CJ.

15. The application must be refused and the decision of the Commission to refuse him a contractor’s licence confirmed.