Commissioner for Children and Young People and Child Guardian v Lister (no 2)

[2010] QCATA 74

CITATION: Commissioner for Children and Young People and Child Guardian v Lister (no 2) [2010] QCATA 74

PARTIES:	Commissioner for Children and Young People and Child Guardian (Applicant/Appellant)
v
Susan Beryl Lister  (Respondent)

APPLICATION NUMBER:            APL258-10               

MATTER TYPE: Appeal

HEARING DATE:   27 October 2010

HEARD AT:   Brisbane

DECISION OF: Judge Fleur Kingham
(Deputy President)
Dr Nigel Collings
Ms Gwenn Murray
(Members)

DELIVERED ON:   2 November 2010

DELIVERED AT:   Brisbane

ORDERS MADE:

1.    The decision of the Tribunal in application number CSR002-06 made on 23 August 2010 is stayed pending the outcome of the appeal.

2.     The Applicant must file in the Tribunal and deliver to the Respondent submissions in support of the appeal by 4:00pm 19 November 2010.

3.    If the Applicant wishes to object to the Tribunal considering any of the material attached to the submissions made by the Respondent on the stay application, the Applicant must file in the Tribunal and deliver to the Respondent submissions identifying the material objected to by 4:00pm 19 November 2010.

4.    Both parties must file in the Tribunal and deliver to each other a list of those documents from the file CSR002-06 that they wish the Tribunal to consider in the appeal by 4.00pm 19 November 2010.

5.    The Respondent must file in the Tribunal and deliver to the Applicant her Response to the Applicant’s submissions in relation to the Appeal by 4:00pm 29 November 2010.

6.    The appeal is listed for Hearing at Brisbane on 1 December 2010 at 1:30pm.

CATCHWORDS : 

APPEAL – APPLICATION TO STAY DECISION SUBJECT TO APPEAL – principles that apply where decision made pursuant to a protective jurisdiction

Cook’s Construction P/L v Stork Food Systems Aust Pty Ltd [2008] QCA 322 Applied

Legal Services Commission v Baker (No 1) [2005] QCA 482 Applied

McKee v McKee [1951] AC 352 Applied

Robb v Law Society of ACT No ACT 634 of 96 unreported Cited

Commission for Children and Young People and Child Guardian Act 2000 s 155, 354(2)(a)

Queensland Civil and Administrative Tribunal Act 2009 ss 145(2),(3)

Queensland Civil and Administrative Tribunal Rules 2009 Rule 53(2)

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mr Capper for the Commissioner
RESPONDENT:	Ms Lister represented herself

REASONS FOR DECISION

1. The Commissioner for Children and Young People and Child Guardian (the Commissioner) issued a negative notice to Ms Lister on her application for a positive notice (blue card)[1]. A blue card is required to work in certain occupations or to fulfil certain duties, broadly described as child related.

   [1] Under the Commission for Children and Young People and Child Guardian Act 2000 (the CCYPCG Act)

1. In brief, the Commissioner refused Ms Lister’s application because she had been convicted of three offences against children and had been charged with a large number of other offences against children. The offences Ms Lister was convicted of were one count of deprivation of liberty and two of common assault.

1. The children involved were particularly vulnerable, One, aged between 6 and 9 during the charged period, was severely autistic. Ms Lister was convicted of restraining him on a toilet by binding him to the bowl and railings with sheets. She was also convicted of hitting him with a fly swatter. The other, who was older, was also autistic. Ms Lister was convicted of holding him while another person rubbed chilli in his mouth.

1. Ms Lister was successful in her application to QCAT to review the Commissioner’s decision to refuse her a blue card. The Commissioner has appealed the decision and seeks an order staying the decision until the appeal is decided[2].  Last week, the Tribunal granted an interim order until the full appeal Tribunal could be convened to hear the stay. At the hearing on 27 October 2010, the Tribunal granted the stay with written reasons to follow. These are our reasons.

   [2] Queensland Civil and Administrative Tribunal Act 2009 s 145(2),(3)

1. The Tribunal’s power to grant a stay is conferred by s145(2) of the Queensland Civil and Administrative Tribunal Act 2009. The circumstances in which a stay might be granted are not proscribed by that section. General principles applied by the courts on applications for a stay pending appeal provide appropriate guidance. It is not necessary to show special or exceptional circumstances for a stay to be granted but a sufficient basis must be shown for depriving a successful party of the benefit of a decision in their favour[3]. 

   [3] Cook’s Construction P/L v Stork Food Systems Aust Pty Ltd [2008] QCA 322 at [12]

1. The Commissioner’s appeal asserts legal errors by the Tribunal at first instance, including: that, in applying the law to the facts the member placed inappropriate weight on certain matters and failed to consider others properly or at all; that there was no factual basis for certain findings and that the reasons given for the decision were inadequate.

1. The grounds are arguable and raise matters of substance. The Commissioner’s prospects of success could not be described as remote or fanciful. One ground has strong prospects. On the review application, the Tribunal’s reasons posed a series of questions relevant to the ultimate decision but they do not clearly explain either the member’s reasoning or his conclusions on those questions.

1. Ms Lister ceased working for her former employer when she was informed of the interim order. She is unable to work with children without a blue card. She has been refused a yellow card (which would enable her to work with adults with a disability) apparently because of her convictions. The Tribunal has done all it can to bring the matter on for an early hearing. The appeal hearing is listed on 1 December 2010.

1. Ms Lister is a woman in her early 60s with limited work experience and qualifications. Though it is possible for her to work in a capacity that did not involve care for children or adults with a disability, the Tribunal accepts that, in the short time to the appeal hearing, it is unlikely Ms Lister will be able to secure alternative employment.

1. Her financial position is not strong and she will be further affected by a stay. Against that, without an order the Commissioner is under a positive obligation to comply with the Tribunal’s decision and must issue a positive notice.

1. Although Ms Lister has the benefit of an order of the Tribunal in her favour, these proceedings involve matters of public interest which do not arise in a suit between civil litigants[4]. The original decision was made by a statutory authority charged with administering a screening process for child related employment. The purpose of the scheme is protective.  The paramount consideration is the safety and well being of children[5].  The Commissioner’s decision could not be stayed pending the outcome of the application to review it[6], an indication, the Commissioner submitted, that the Tribunal should favour keeping the restriction on Ms Lister’s employment in place.

   [4] Legal Services Commission v Baker (No 1) [2005] QCA 482 at [36]

   [5] Commission for Children and Young People and Child Guardian Act 2000 s 155

   [6]Commission for Children and Young People and Child Guardian Act 2000 s354(2)(a)

1. The Court of Appeal has examined what factors should be considered for an application to stay the decision of disciplinary tribunal pending appeal. In Legal Services Commission v Baker (No1)[7] the Court adopted the reasoning of Finn J in Robb v Law Society of ACT[8] that the following considerations are relevant:

   [7] [2005] QCA 482 at [10]

   [8] No ACT 634 of 96

(a)       The seriousness of the misconduct;

(b)       The likely prejudice to confidence in the integrity of the disciplinary process and reputation;

(c)       The means available to mitigate the prejudice; and

(d)       expedition in hearing the appeal.

1. While, in both those cases it was a practitioner subject to adverse findings who applied for a stay, the considerations, adapted to these circumstances, are helpful.

1. Here, it is the seriousness of the conduct that the Commissioner considered sufficient justification for refusing a blue card which must be examined. The nature of the charged conduct (not just the conduct which resulted in convictions) gives rise to a legitimate concern about the safety of children left in Ms Lister’s care.

1. Given that legitimate concern, confidence in the blue card regime is likely to be prejudiced if the stay is not granted in circumstances where the Member’s reasons for setting aside the Commissioner’s decision are not clearly articulated.

1. Ms Lister has been without a blue card since 6 November 2006. She has a present intention to use the blue card to resume employment working with children as soon as it is issued. 

1. The appeal hearing has been expedited. The Commissioner’s prospects on appeal are not remote or fanciful. In the short time between now and then, the safety and wellbeing of children is the consideration to which all others should yield[9].

   [9] McKee v McKee [1951] AC 352 at 365