DJB v Director-General, Department of Justice and Attorney General (No 1)

Case [2024] QCAT 174

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

DJB v Director-General, Department of Justice and Attorney General (No 1) [2024] QCAT 174

PARTIES:
DJB

(applicant)

v
DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY GENERAL

(respondent)

APPLICATION NO/S:

CML 180-22

MATTER TYPE:

Children’s matters

DELIVERED ON:

Decision – 4 April 2024

Amended Decision – 8 April 2024

Reasons – 8 April 2024

HEARING DATE:

4 April 2024

HEARD AT:

Cairns

DECISION OF:

Member Taylor

ORDERS:

APPLICATION FOR MISCELLANEOUS MATTERS (ADJOURNMENT)

IT IS THE DECISION OF THE TRIBUNAL THAT:

1.     The Application for Miscellaneous Matters (Adjournment) filed by the Applicant on 27 March 2024 is dismissed.

APPLICATION TO REVIEW A DECISION

THE TRIBUNAL DIRECTS THAT :

2. Pursuant to s 93(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the substantive hearing of the Application to Review a Decision filed by the Applicant on 14 June 2023 will proceed today in the absence of the Applicant following his failure to appear.

3.    Having heard from the Respondent’s representative in the hearing, the hearing is  adjourned for the submission of written closing submissions.

4.    The Respondent must file two (2) copies of her written closing submissions to the Tribunal and send one (1) further copy to the Applicant by 4:00pm on 24 April 2024.

5.   The Applicant must file two (2) copies of his written closing submissions (if any), including any response to the Respondent’s submissions, to the Tribunal and send one (1) further copy to the Respondent by 4:00pm on 15 May 2024.

6.   The Respondent must file two (2) copies of her reply (if any) on matters of law arising from the Applicant’s submissions to the Tribunal and send one (1) further copy to the Applicant by 4:00pm on 24 May 2024.

7.   Should the Respondent not be making any submissions in reply she is to notify the Tribunal and Applicant promptly after receipt of the Applicant’s submissions.

8.   The decision of the Tribunal is otherwise reserved, to be determined on-the-papers following compliance with Orders 4 to 7 herein or the expiry of the time for such compliance.

CATCHWORDS:

ADMINISTRATIVE LAW – REASONS FOR ADMINISTRATIVE DECISIONS – PROCEDURE AND OTHER MATTERS – where the applicant applied for a review of a decision under the Working with Children (Risk Management and Screening) Act 2000 (Qld) – where the application had been listed for hearing in May 2023 – where the applicant applied late for an adjournment of that hearing due to commitments to shift work in new employment not enabling him to attend – where the application was relisted for hearing in April 2024 – where the applicant once again applied for an adjournment due to commitments to shift work in the same employment again not enabling him to attend – where the applicant had known of the shift work commitments, and thus the limits on his availability, for many months before the hearing was relisted but he had not informed the Tribunal of same until he applied for the second adjournment– where…

Details
AGLC
DJB v Director-General, Department of Justice and Attorney General (No 1) [2024] QCAT 174
Case
[2024] QCAT 174
Decision Date

CaseChat Overview and Summary

DJB, the applicant, sought to review a decision made by the Director-General of the Department of Justice and Attorney General under the Working with Children (Risk Management and Screening) Act 2000 (Qld). The case involved the cancellation of the applicant’s Exemption Card and the issuance of a negative notice, following a conviction for assault occasioning bodily harm. The primary issue before the Queensland Civil and Administrative Tribunal (QCAT) was whether the applicant's second application for an adjournment, made due to work commitments, was justified, and if not, whether the proceedings should proceed in his absence. The tribunal also had to consider whether the applicant's human rights were contravened and if an oral hearing was mandated under the legislation.

The tribunal found that the applicant had known of his shift work commitments for many months but had not informed the tribunal until his second adjournment application. Given the applicant's failure to appear for the scheduled hearings, the tribunal dismissed the second application for adjournment and proceeded with the substantive hearing in his absence. The tribunal considered the provisions of the QCAT Act and the Working with Children (Risk Management and Screening) Act 2000 (Qld), along with the QCAT Practice Direction No 3 of 2013, which emphasised the need for the decision-maker to assist the tribunal in making the correct decision. The tribunal concluded that the applicant's failure to adhere to the hearing dates, despite being informed of the consequences, warranted the dismissal of his second adjournment application.

The tribunal ordered that the substantive hearing of the application to review the decision would proceed in the applicant's absence. It set out a schedule for the submission of written closing submissions by both parties, reserving the final decision until the completion of this process. The tribunal ensured that all relevant material was disclosed to enable it to decide the proceeding with all the relevant facts. The tribunal also took into account the need for efficient use of court resources and the rights of other litigants, as highlighted in previous judicial decisions.

Orders

Orders of the court

APPLICATION FOR MISCELLANEOUS MATTERS (ADJOURNMENT)

IT IS THE DECISION OF THE TRIBUNAL THAT:

1. The Application for Miscellaneous Matters (Adjournment) filed by the Applicant on 27 March 2024 is dismissed.

APPLICATION TO REVIEW A DECISION

THE TRIBUNAL DIRECTS THAT :

2. Pursuant to s 93(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the substantive hearing of the Application to Review a Decision filed by the Applicant on 14 June 2023 will proceed today in the absence of the Applicant following his failure to appear.

3. Having heard from the Respondent’s representative in the hearing, the hearing is adjourned for the submission of written closing submissions.

4. The Respondent must file two (2) copies of her written closing submissions to the Tribunal and send one (1) further copy to the Applicant by 4:00pm on 24 April 2024.

5. The Applicant must file two (2) copies of his written closing submissions (if any), including any response to the Respondent’s submissions, to the Tribunal and send one (1) further copy to the Respondent by 4:00pm on 15 May 2024.

6. The Respondent must file two (2) copies of her reply (if any) on matters of law arising from the Applicant’s submissions to the Tribunal and send one (1) further copy to the Applicant by 4:00pm on 24 May 2024.

7. Should the Respondent not be making any submissions in reply she is to notify the Tribunal and Applicant promptly after receipt of the Applicant’s submissions.

8. The decision of the Tribunal is otherwise reserved, to be determined on-the-papers following compliance with Orders 4 to 7 herein or the expiry of the time for such compliance.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Related to these provisions is, as the respondent’s representative properly referred me to and to which he gave emphasis as I show as bold text herein, is the provisions of the QCAT Practice Direction No 3 of 2013 which is as relevant consistent with s 21 of the QCAT Act, in particular paragraph 3 thereof which I extract here in full:The government of agency official (the decision-maker) which made the decision is required to use their best endeavours to assist the Tribunal so that it can make its decision on the review: that is, the decision-maker must assist the Tribunal to make the correct and preferable decision. Therefore, the decision-maker’s role is not adversarial. However, in discharging its obligations the decision-maker must properly test the evidence relied upon by the applicant … to perform its function of assisting the Tribunal. These provisions must also be read in conjunction with two fundamental provisions of the QCAT Act which provides for relevant practices and procedures in the conduct of a proceeding. These are extracted here to the extent relevant:28 Conducting proceedings generally(1) The procedure for a proceeding is at the discretion of the tribunal, subject to this Act, an enabling Act and the rules.(2) In all proceedings, the tribunal must act fairly and according to the substantial merits of the case.(3) In conducting a proceeding, the tribunal—(a) must observe the rules of natural justice; and(b) …; and(c) may inform itself in any way it considers appropriate; and(d) must act with as little formality and technicality and with as much speed as the requirements of this Act, an enabling Act or the rules and a proper consideration of the matters before the tribunal permit; and(e) must ensure, so far as is practicable, that all relevant material is disclosed to the tribunal to enable it to decide the proceeding with all the relevant facts.(4)….32 Proceeding … on the papers(1) ….(2) The tribunal may, if appropriate, conduct all or a part of a proceeding entirely on the basis of documents, without the parties, their representatives or witnesses appearing at a hearing.(3) If the tribunal conducts a proceeding under subsection (1) or (2), the tribunal must ensure the public has access to, or is precluded from access to, matters disclosed in the proceeding to the same extent as if the proceeding had been heard before the tribunal with the attendance in person of all persons involved.(4) Provisions of this Act applying to a hearing apply with necessary changes in relation to a proceeding conducted under subsection (1) or (2). The second is the WWCA, the relevant provision of which is s 229 therein given its relationship with ss 19 and 20 of the QCAT Act, such which I extract here in full:[5][5]There are many other provisions of the WWCA which are relevant to the decision to be made in terms of the substantive Application for Review, however it is not necessary to address these here because they relate to the making of the decision as compared to the decision-making process which is in effect in this Tribunal the hearing and its associated prior directions for the filing of documentary material.229 Chief executive to invite submissions from person about particular information(1) This section applies if the chief executive—(a) must decide whether or not there is an exceptional case for the person; and(b) is proposing to decide the working with children check (general) application by issuing a negative notice to the person.(2) The chief executive must give the person a written notice—(a) stating the following—(i) the police information, domestic violence information, disciplinary information or adverse interstate WWC information about the person that the chief executive is aware of;(ii)any other information about the person that the chief executive is aware of that the chief executive reasonably believes is relevant to whether it would be in the best interests of children for the chief executive to issue a working with children clearance to the person; and(b) inviting the person to give the chief executive, within a stated time, a submission about—(i) whether or not there is an exceptional case for the person; or(ii) why the chief executive should issue a working with children clearance, or should not issue a negative notice, because of an exceptional case for the person.(3) The stated time must be reasonable and, in any case, at least 7 days after the chief executive gives the notice to the person.(4) Before deciding the application, the chief executive must consider any submission received from the person within the stated time.(5) A submission mentioned in subsection (2)(b) may be made orally or in a language other than English if the chief executive considers a submission in that form is reasonable in the circumstances.

Decision

Reasons for decision

On 18 May 2022, the respondent cancelled the applicant’s Exemption Card and issued him with a negative notice. Such was as a consequence of the applicant being convicted on 6 August 2020, although no conviction was recorded, on a charge of ‘assault occasioning bodily harm in a public place whilst intoxicated’ arising out of an event which occurred in February 2020. (the Decision). On 14 June 2022, the applicant applied to this Tribunal for a review of that Decision (the Application for Review).[1][1]For clarity, this was marked for identification in this proceeding as ‘MFI A’. What then followed was a series of directions issued for the filing of documentary material, and on 14 April 2023 the parties were given notice of the hearing of that application, it being listed for 31 May and 1 June 2023. Shortly before that hearing, on or about 4 May 2023 the respondent filed and served an ‘Outline of Submissions’. (the Outline of Submissions) [2][2]This was marked for identification in the proceeding as ‘MFI B’. On 24 May 2023, the applicant applied for an adjournment of that hearing citing work commitments as the reason, namely that he had commenced work from 11 May 2023 as a Fly-In / Fly-Out worker in a mine in central Queensland, and as a consequence of only having just started in that employment he had no accrued leave time. Shortly thereafter on 26 May 2023 he provided by way of e-mail an ‘amendment’ to his application wherein he listed available dates based on his employment roster up to the end of December 2023. (the First Application for Adjournment) On 29 May 2023, the adjournment was granted and the hearing was vacated. Subsequently further directions were given extending time for compliance with earlier directions for the filing of material. On 14 June 2023, the applicant sent an e-mail to the Tribunal Registry in which the following statement appears:[3]I wish to advise that I have no further material to be filed and ask that the Tribunal relist the hearing on a date to be advised, taking into account the dated I noted in my Form 40 filed on 24 May 2023.[3]His reference to the ‘Form 40 filed on 24 May 2023’ is to the First Application for Adjournment including the amendment provided on 26 May 2023. On 27 June 2023, a Direction was given that the matter would be relisted for a two day in person hearing in Cairns at a date and time to be advised. There was no subsequent contact from the applicant or the respondent to the Tribunal Registry. It was then not until 14 March 2024 that the parties were notified of the hearing being re-listed, such to be conducted in Cairns on 4 and 5 April 2024. On 21 March 2024, by way of ordinary mail, and then again on 27 March 2024 by way of e-mail, the applicant once again applied for an adjournment of the hearing. His reason was again work commitments, namely that he commenced a shift of 7 days night work on 4 April 2024 and thus would be unavailable to attend the hearing (the Second Application for Adjournment).[4][4]This was also marked for identification in this proceeding as ‘MFI C’.

Ratio Decidendi

Legal Principle Established

As was noted by French CJ therein:[6]In Dawson v Deputy Commissioner of Taxation, King CJ acknowledged the responsibility of judges to ensure, “so far as possible and subject to overriding considerations of justice”, that the limited resources which the State commits to the administration of justice are not wasted by the failure of parties to adhere to trial dates of which they have had proper notice. [6]Aon Risk Services Australia v ANU (2009) 239 CLR 175,189, [25]. Footnotes omitted. Emphasis added. Shortly thereafter the Chief Justice also made this comment in reference to the earlier High Court’s decision in Sali v SPC Ltd:[7]…. By majority, this Court held that in the exercise of a discretion to refuse or grant an adjournment, the judge of a busy court was entitled to consider “the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties”. Brennan, Deane and McHugh JJ went on to say:“What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources.”Toohey and Gaudron JJ dissented in the result but acknowledged, by reference to GSA Industries, that (93):“The contemporary approach to court administration has introduced another element into the equation or, more accurately, has put another consideration onto the scales. The view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court’s lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard are pressing concerns to which a court may have regard.”The observations made in the two joint judgments in Sali were linked to the particular knowledge that a judge or court, called upon to exercise a discretion to adjourn, would have of the state of that court’s lists. However, the mischief engendered by unwarranted adjournments and consequent delays in the resolution of civil proceedings goes beyond their particular effects on the court in which those delays occur. In that connection, there have been a number of cases after Sali in which it has been accepted, in the context of Judicature Act Rules, that the public interest in the efficient use of court resources is a relevant consideration in the exercise of discretions to amend or adjourn.[7]Ibid,190 and 191,[26] and [27]. Footnoted omitted. Emphasis added. A similar observation was made by the Gummow, Hayne, Crennan, Keifel and Bell JJ in Aon v ANU, also in reference to the same reasons of Toohey and Gaudron JJ in Sali, where their Honours stated in reference to a Rule of Court relevant in that proceeding:[8]… the rules concerning civil litigation no longer are to be considered as directed only to the resolution of the dispute between the parties to a proceeding. The achievement of a just but timely and cost-effective resolution of a dispute has an effect upon the court and upon other litigants. …[8]Ibid,211,[93].