Brisbane City Child Care Pty Ltd v Kadell

The case of Brisbane City Child Care Pty Ltd v Kadell involves the applicant, who owned and operated a child care centre, seeking a declaration that the imposition of conditions on the consent to the transfer of the service approval for the child care centre was beyond power. The dispute arose when the Regulatory Authority imposed conditions on the consent to the transfer of the service approval, which the applicant claimed were beyond power. The applicant sought to sell the child care centre to a third party, but the third party withdrew from the purchase due to the conditions imposed by the Regulatory Authority. The primary judge dismissed the applicant's proceeding for judicial review on the ground that it was inappropriate for the proceeding to continue. The applicant appealed the decision to the Supreme Court, seeking leave to appeal and to adduce further evidence.

The legal issues before the court were whether it was appropriate for the proceeding to continue, whether the primary judge erred in summarily dismissing the proceeding, and whether the applicant was required to show a substantial injustice or important question of law before leave to appeal would be granted. The court considered the meaning of the phrase "inappropriate" in s 48(1)(a) of the Judicial Review Act 1991 (Qld), and whether leave to appeal should be granted. The court also considered whether special leave should be given in respect of evidence that was obtainable with reasonable diligence for the purpose of the hearing before the primary judge.

The court found that the decision of the primary judge to summarily dismiss the proceeding was in error, as there was utility for the applicant in obtaining the narrower declaration in circumstances where it still wished to sell the child care centre. The court found that the decision arose from the court’s own motion and with little notice, and resulted in the summary dismissal of the application for inutility, without considering the merits. The court found that the questions that arise on the proposed appeal are substantive and not merely procedural, and that there is only limited judicial direction on the meaning of the phrase “inappropriate” in s 48(1)(a) of the Act which is important public interest legislation. The court found that leave to appeal should be granted, and that special leave to adduce further evidence should be refused with costs. The appeal was allowed, and the orders made by the primary judge were set aside. The further amended application for a statutory order for review and application to review was remitted to the Trial Division for hearing on the merits.

In summary, the court found that the primary judge erred in summarily dismissing the proceeding, and that leave to appeal should be granted. The court found that the appeal was allowed, and that the orders made by the primary judge were set aside. The further amended application for a statutory order for review and application to review was remitted to the Trial Division for hearing on the merits. The respondents were ordered to pay the applicant’s costs of the application for leave to appeal, the appeal and the appearances before the primary judge on 18 and 19 November 2019, but otherwise the costs of the proceeding below were reserved.