Harley v Department of Justice and Attorney-General

[2012] QCAT 390

CITATION: Harley v Department of Justice and Attorney-General [2012] QCAT 390

PARTIES:	Joseph Harley (Applicant/Appellant)
v
Department of Justice and Attorney-General (Respondent)

APPLICATION NUMBER: GAR276-12

MATTER TYPE: General administrative review matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Michelle Howard, Acting Senior Member

DELIVERED ON: 24 August 2012

DELIVERED AT: Brisbane

ORDERS MADE:

1.    That until further order, the operation of the decision of the Department of Justice and Attorney-General to cancel the crowd controller license of Mr Harley dated 11 July 2012 is stayed, subject to Mr Harley providing a written undertaking sworn or affirmed before a competent witness, to the Tribunal by 4pm on 31 August, 2012, that:

(i)   he will not work on the front door of any licensed venue as a crowd controller pending further order of the Tribunal;

(ii) if he is involved in any physical altercation with a patron pending further order, he will provide a written statement about the incident to the Tribunal and the Department of Justice and Attorney-General within 3 working days of the incident occurring.

2.   Each party has liberty to apply in relation to the proposed wording of the undertakings until 4pm on 28 August 2012.

CATCHWORDS:

STAY APPLICATION – SECURITY PROVIDER – where incident at security providers workplace – where criminal charges not proceeded with – where department cancelled licence

Queensland Civil and Administrative Tribunal Act 2009, s 22
Security Providers Act 1993

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. On 11 July, 2012, a delegate of the Chief Executive of Department of Justice and Attorney-General Industry Licensing Unit made a decision to cancel Mr Joseph Harley’s Crowd Controller Licence number 3465483.

2. The reasons given for the cancellation were essentially that Mr Harley was no longer considered to be an appropriate person to hold a licence.  This finding was based on an incident which occurred at the Down Under Bar on 13 October 2011, during which Mr Harley struck a male person (the alleged victim), and elbowed his associate and then took the alleged victim to the ground.

3. Mr Harley has applied to the Tribunal to review the cancellation decision and also for a stay of the cancellation decision pending the review hearing.  The stay application has come to me for determination on the papers.

4. Both parties have provided extensive material including CCTV footage and submissions in respect of the stay application.  Mr Harley provided CCTV footage from the venue’s camera which lasts for about an hour.  The Department has provided CCTV footage provided from a Brisbane City Council camera for a considerably shorter period leading up to and including the incident.  I have viewed the footage leading up to and including the incident.  The footage is not accompanied by a sound track.

5. Mr Harley says that he was confronted with an aggressive person who spent some 40 minutes causing issues for security and other patrons after being refused entry to the venue.  He says he called the Police on two occasions to request their attendance at the venue; that he tried to resolve the situation peacefully through discussion; that he arranged for the person to speak with the manager of the venue; and adopted postures showing he did not want a physical confrontation.  Despite this, he says was aggressively threatened with physical violence by the alleged victim who placed himself within inches of Mr Harley’s face.  Therefore, he acted to defend himself, and then restrained the person on the ground until the Police arrived.

6. He says his actions were pre-emptive actions in self-defence, when faced with imminent assault by an intoxicated and aggressive man who was verbally and physically threatening him.  He submits that a pre-emptive strike in self-defence is a lawful assault as recognised in criminal law.[1]

   [1]Reliance is placed on Beckford v R [1987] 3 All ER 425, 431; R v Lawrie [1986] 2 Qd R 502, 505.

7. Criminal charges were brought against Mr Harley.  However, he says that he made submissions to the Crown that the charge should not proceed because on the Crown’s case, the defences of self-defence and/or provocation could not be negatived.  At the trial, he says the prosecution offered no evidence and the Magistrate dismissed the charges.

8. Mr Harley is 24 years of age, in a de facto relationship and expecting his first child, and has no criminal history.  He has had steady employment as a crowd controller over the last four years.  He has provided a number of character and employment references attesting to his ability to build rapport with customers, and perform to a high level in conflict resolution and negotiation.

9. As a result of her pregnancy, Mr Harley’s partner can currently work part-time only.  As a result of the licence cancellation Mr Harley’s net income has reduced from $2,000 per fortnight to $800 per fortnight.  They are struggling to meet their financial obligations and as a result are experiencing considerable financial distress.

10. Mr Harley has indicated that he would be prepared not to work on the front door of a licensed venue, which he says is recognised as one of the more confrontational roles for a crowd controller, pending hearing.

11. The Department opposes the granting of a stay.  The Department considers that the CCTV footage shows an unprovoked attack by Mr Harley.  The Department does not dispute the outcome of the criminal charges, but relies upon the Brisbane City Council CCTV footage as prima facie evidence that there appears to be little in the way of provocation or threat posture by the alleged victim as to warrant Mr Harley’s actions.  Further, it says it is reasonable to assume that both the alleged victim and innocent bystanders were in immediate risk of serious injury as a result of the affray.

12. Also, it says the Tribunal can take judicial notice of the ‘precarious law and order situation in Queensland’, the ‘well recorded instances of violence, serious injury and death’ occurring when an alleged victim’s head hits the pavement ‘after a single punch’, and safety messages such as ‘One Punch Can Kill’.  It says the actions of Mr Harley must be assessed in this context, emphasising that crowd controllers must be of the highest integrity and act with absolute restraint to avoid direct physical interaction with patrons.  It argues that the balance of convenience favours refusing the stay.  Mr Harley makes no submissions about the Department’s submission regarding taking of judicial notice.

Discussion and Decision 

1. Under section 22(3) of QCAT Act, the Tribunal may make an order staying the operation of a reviewable decision pending hearing. It may only do so if it considers a stay order is desirable after having regard to the interests of any person whose interests may be affected; any submissions of the decision-maker; and the public interest: s 22(4). In exercising its discretion,[2] the Tribunal must form a positive view that making a stay order is desirable.  In making a stay order, the Tribunal may require an undertaking it considers appropriate.[3]

   [2]        Elliott v QBSA [201] QCAT 180.

   [3] QCAT Act, s 22(6).

2. The Tribunal may also consider other matters in addition to those specified in section 22(4), including whether an arguable case is demonstrated; and whether the balance of convenience favours the granting of the stay.[4]

   [4]Music Kafe v OLGR [2012] QCAT 217; The Hideaway Café Bar Pty Ltd v OLGR [2012] QCAT 46.

3. Mr Harley has demonstrated an arguable case.  It is readily apparent that there are real issues for the Tribunal’s consideration at the review hearing in determining the correct and preferable decision.

4. Although the evidence is scant, I accept that Mr Harley and his partner are experiencing financial distress due to the significant reduction in his income as a consequence of the licence cancellation.  I acknowledge the concerns expressed by the Department about the need for a high level of integrity in a person in a position of crowd controller, due to significant possibility of serious consequences in the event of physical incidents involving patrons and others who may be nearby.

5. Judicial notice may be taken of a notorious fact without inquiry, in circumstances when the fact is well known to persons generally and it is not seriously disputable.[5]  I do not accept that the ‘precarious law and order situation in Queensland’ as asserted by the Department is a notorious fact of which I am entitled to take judicial notice.  It is a vague assertion which would be the subject of varying opinion.  However, I am aware of a safety campaign which has been referred to widely in the media which employs the ‘One Punch Can Kill’ slogan.  The ‘One Punch Can Kill’ campaign alerts persons, especially young persons, of the dangers, and sometimes devastating consequences, of violence through a punch.

   [5]        Cross on Evidence, online edition, LexisNexis 2012, viewed 22/8/2012.

6. It is not for me to draw any definitive conclusions about the issues raised by the parties about the circumstances of the incident.  These are matters for the final hearing.  However, what is apparent from the CCTV footage is that for some considerable time before the incident, the alleged victim and his associate were outside the venue.  Mr Harley appears to engage with them with them over a reasonably lengthy period of some 30 to 40 minutes in the course of his duties. 

7. Then the alleged victim moves in very close to Mr Harley.  Mr Harley talks to him further.  The alleged victim subsequently moves in very close to Mr Harley again.  Mr Harley appears to strike the alleged victim and then, when his associate moves in, in an apparent attempt to intervene, strikes the associate, sending him in a direction away from the alleged victim.  At this point, the alleged victim is an area where there were no other patrons in his immediate space.  Mr Harley forces him to the ground and then restrains the alleged victim with his leg and then by sitting on him until the Police arrive.

8. While it is not necessarily an excuse for Mr Harley’s conduct, it does appear that the alleged victim had been causing issues for security for some considerable period of time.  He then moved in very close to Mr Harley on two occasions before Mr Harley acted.  It also appears from the footage that the actions taken by Mr Harley involved only the alleged victim, and his associate when he attempted to aid the alleged victim.  His associate was pushed away, and the alleged victim manoeuvred into a space where no other persons were standing.

9. The licensing of security providers through the Security Providers Act 1993 is intended to ensure that only appropriate persons hold security licenses including crowd controller licences.  This protects the public interest.  However, as I observed in Black v Chief Executive, Department of Employment, Economic Development and Innovation[6] while it is in the public interest for security providers to control their actions to prevent harm to patrons, it is inevitable that from time to time they are likely to be confronted with situations in which they are physically and verbally threatened and assaulted.  I recognise that is a concerted public drive through the ‘One Punch Can Kill’ campaign to alert persons, especially young persons, of the dangers, and potentially devastating consequences, of violence.

   [6] [2011] QCAT 27.

10. That said, there is no suggestion that Mr Harley has been involved in any other incidents of concern, despite a not insignificant working history of some four years in the security industry.  The licence cancellation is a warning to him of the Department’s attitude to the use of any physical force whatever the circumstances may be.  I consider that this goes some way to ensure that he will not put the public at risk pending the hearing.[7]  Further, he offers not to work on the front door of a licensed venue pending hearing, which I accept is likely to be a more confrontational role.  In my view, the public interest would be further protected if he is required to report any physical altercation with a patron pending further hearing of the proceeding.

    [7]In Craddock v Chief Executive, Department of Employment, Economic Development and Innovation [2010] QCAT 229, Senior Member Oliver reached a similar view.

11. It seems to me desirable to grant a stay and that the balance of convenience favours granting a stay until further order, provided that undertakings are given by Mr Harley to not work on the front door of a licensed venue and to report any physical altercations in which he is involved to the Tribunal and the Department promptly.

12. I make orders accordingly.  I give liberty to each party to apply in relation to the wording I have proposed for the undertakings required.