Corporate Development Services (Australia) Pty Ltd t/as Direct Care Resources v Department of Communities, Child Safety and Disability Services

[2013] QCAT 349

CITATION: Corporate Development Services (Australia) Pty Ltd t/as Direct Care Resources & Anor v Department of Communities, Child Safety and Disability Services [2013] QCAT 349

PARTIES:	Corporate Development Services (Australia) Pty Ltd t/as Direct Care Resources Wapdas Pty Ltd t/as Direct Care Resources (Applicant)
v
Department of Communities, Child Safety and Disability Services (Respondent)

APPLICATION NUMBER: CML006-13

MATTER TYPE: Childrens matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Susan Gardiner, Member

DELIVERED ON: 12 July 2013

DELIVERED AT: Brisbane

ORDERS MADE:

The decision-maker for the decision dated 1 November 2012 is invited to reconsider the decision under section 23 of the Queensland Civil and Administrative Tribunal Act 2009. The application by Direct Care for directions to  produce documents is dismissed.

CATCHWORDS:

CHILDREN’S MATTER – Renewal of child care licence – where refused by Department because no current service in region but where without licence, no child care can be undertaken – where policy change by Department after decision was originally made – where both parties request an invitation to reconsider to decision maker.

Queensland Civil and Administrative Tribunal Act 2009: s23

Child Protection Act 1999: s 129;
Child Protection Regulation 2011: s 4

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

REASONS FOR DECISION

1. Direct Care Resources provides child care services in Queensland but currently not in Brisbane.  Direct Care applied to the Department to renew its care service licence but this was refused by the Department on 1 November 2012.  

2. The Department refused Direct Care’s application because Direct Care did not operate a service in Brisbane and no independent assessment can be reasonably undertaken as required by the Child Care regulations[1].

   [1]        Child Protection Act 1999 s 129; Child Protection Regulation 2011 s 4.

3. This seems to create a “catch 22” situation.  Without a license, no child care can be undertaken but without a child care site, no assessment can be undertaken to renew a licence. 

4. Direct Care has applied to the Tribunal to review the Department’s decision. 

5. Since the filing of this application, significant policy changes have now been implemented within the Department.    In March 2013, the Director-General of the Department approved a practice that now allows for organisations to make a single application for a license to cover all care service outlets across Queensland – previously it was a regionally based process[2].

   [2]        Department’s submissions dated 28 March 2013, para 5.

6. Both parties now submit that the Tribunal should invite the decision maker to re-consider her decision under section 23 of the Queensland Civil and Administrative Tribunal Act 2009. This section allows the Tribunal to extend this invitation at any stage in the proceedings.

7. Depending on the outcome of that re-consideration, section 23 sets out what then happens. The review continues based on the original decision (if confirmed) or based on the new decision, unless Direct Care withdraws the review application (presumably because it is happy with the new decision).

8. In the circumstances, an invitation to the decision maker to reconsider, as sort by both parties, seems an appropriate course of action and this invitation will be made.   

9. As part of the reconsideration order (although not sought in the micellaneous application itself), Direct Care wants the Tribunal to direct the Department to produce information as part of the Department’s obligation as a model litigant[3].  These documents can only go to the decision currently under review – there is no other decision yet made.

   [3]        Under Queensland Civil and Administrative Tribunal Act 2009 s 21(2).

10. The documents sought go to then exisiting policies and extensive details of any current or past care service license holders on the Brisbane region.

11. The Department opposes this request saying Direct Care is actually seeking an order under the discovery provisions of section 63 of the QCAT Act and that this information is not relevant to the application to review the November 2012 decision.

12. The department says the November 2012 decision not to grant a care licence was not based on policy but on Direct Care’s sole inability to satisy section 126 of the Act.

13. After consideration of the reasons of the decision maker of the November 2012 decision, I agree with the submission of the Department and decline to make any orders for the production of documents at this time.  

14. It may be appropriate to make another decision in the future on a further application but, until the decision maker reconsiders under the invitation flowing from this decision, it remains unclear what decision, if any, will be under review.

15. As part of the reconsideration, the Department has asked Direct Care to provide specified information[4]. This request is directed to Direct Care and not the Tribunal and is neither an order sought by the Department as part of any reconsideration invitation nor is this an order the Tribunal could make under s23 of the QCAT Act.

    [4]        Department’s submissions dated 28 March 2013, para 10.