Director-General, Department of Justice and Attorney-General v DLV

[2023] QCA 201

COURT OF APPEAL

BOND JA
APPLEGARTH J
KELLY J

Appeal No 7290 of 2023
QCATA No 42 of 2022

DIRECTOR-GENERAL, DEPARTMENT OF Applicant
JUSTICE AND ATTORNEY-GENERAL

Respondent

BRISBANE

MONDAY, 16 OCTOBER 2023

JUDGMENT

BOND JA: The proceeding in this Court involves an application pursuant to s 150 of the Queensland Civil and Administrative Tribunal Act2009 (the Act) seeking leave to appeal on a question of law from a decision made by the Appeal Tribunal of the Queensland Civil and Administrative Tribunal. The proceeding was scheduled for hearing this morning. Yesterday evening, the parties compromised the proceeding on terms which involved the respondent agreeing that the application should succeed, the appeal be allowed and the matter be remitted for reconsideration with leave to adduce additional evidence. They provided to the Court a form of consent order expressing the terms on which they had agreed to dispose of the proceeding in this Court. The respondent, by its counsel, has conceded the decision was attended by legal error.

A question arises as to whether this Court is empowered to make consent orders which effectively allow such an application and such an appeal without itself forming a view on the merits of the legal question raised by the appeal. That question has been the subject of discussion in a different legal context in Citigroup Pty Ltd v Mason (2008) 171 FCR 96 at [8] to [15] and Bradken Limited v Norcast S.ár.L (2013) 219 FCR 101 at [19] to [24]. In the present context, the Court’s view is that the fact and nature of the compromise is a consideration which is highly relevant to the question of the grant of leave pursuant to s 150 of the Act.

Further, in the event of a grant of leave, s 153 sufficiently empowers the Court to make the other orders which have been agreed, they being orders which the Court concludes are appropriate in light of the fact and nature of the compromise which has been reached. There does not appear to be any warrant in the Act to conclude that the powers of this Court under those sections can never be exercised unless the Court has been persuaded to form the view that the decision the subject of the application is the result of some legal error. The Court records that it expresses no view one way or the other on the merits of the question of law raised by the application or on whether it would have granted leave to appeal had there been no compromise and the application had proceeded to be fully argued.

Accordingly, the Court would make the following orders by consent of the parties:

Leave to appeal granted.
Appeal allowed.
The decision of the tribunal (Judicial Member McGill SC) dated 19 May 2023 is set aside.
Pursuant to s 153(2) and s 153(3) of the Queensland Civil and Administrative Tribunal Act 2009, the matter is returned to the tribunal for reconsideration, with directions that:
a. the parties have leave to adduce additional evidence; and
b. the tribunal need not be constituted by the same member who constituted the tribunal when the decision was made.
No order as to costs.

APPLEGARTH J: I agree.

KELLY J: I agree.

BOND JA: Accordingly, the Court makes the orders that I announced.

CaseChat Overview and Summary

This case involves an application by the Director-General, Department of Justice and Attorney-General to the Queensland Court of Appeal, seeking leave to appeal against a decision made by the Appeal Tribunal of the Queensland Civil and Administrative Tribunal. The application was made under section 150 of the Queensland Civil and Administrative Tribunal Act 2009. The proceeding was compromised by the parties on the eve of the hearing, with the respondent agreeing to the appeal being allowed and the matter being remitted for reconsideration, subject to certain terms. These terms included leave for the parties to adduce additional evidence and the tribunal not being required to be constituted by the same member who constituted the tribunal when the decision was made. The respondent conceded that the decision of the tribunal was attended by legal error.

The legal issues before the Court were whether it had the power to make consent orders that effectively allowed the application and appeal, without itself forming a view on the merits of the legal question raised by the appeal. Additionally, if leave was granted, the Court needed to determine whether it had sufficient power to make the other orders agreed upon by the parties. The Court considered these issues in light of previous cases discussing the power to make consent orders in a different legal context. The Court concluded that the fact and nature of the compromise was highly relevant to the question of granting leave under section 150 of the Act and that section 153 sufficiently empowered the Court to make the agreed orders.

The Court determined that it had the power to make the consent orders as they were appropriate in light of the compromise reached by the parties. The Court emphasised that it expressed no view on the merits of the question of law raised by the application or on whether it would have granted leave to appeal had there been no compromise and the application had proceeded to be fully argued. The Court granted leave to appeal, allowed the appeal, and set aside the decision of the tribunal. The matter was returned to the tribunal for reconsideration with directions that the parties have leave to adduce additional evidence and the tribunal need not be constituted by the same member who constituted the tribunal when the decision was made. No order was made as to costs.

Accordingly, the Court made the following orders: leave to appeal granted, appeal allowed, the decision of the tribunal set aside, the matter returned to the tribunal for reconsideration with directions for additional evidence and a different tribunal member, and no order as to costs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established