Grealy v Director-General, Department of Justice and Attorney-General - [2018] QCAT 2

CITATION:	Grealy v Director-General, Department of Justice and Attorney-General [2018] QCAT 2
PARTIES:	Thomas Damien Grealy (Applicant)
v
Director-General, Department of Justice and Attorney-General (Respondent)
APPLICATION NUMBER:	CML214-16
MATTER TYPE:	Childrens matters
HEARING DATE:	26 July 2017
HEARD AT:	Brisbane
DECISION OF:	Member Deane
DELIVERED ON:	10 January 2018
DELIVERED AT:	Brisbane
ORDERS MADE:	1. The decision dated 26 July 2016 that Thomas Damien Grealy’s case is ‘exceptional’ is set aside and replaced with the Tribunal’s decision that there is no exceptional case.
CATCHWORDS:	FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – General administrative review – Blue Card – where negative notice issued – whether an exceptional case – where convicted of offences other than a ‘serious offence’ – weighing protective factors against risk factors Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24 Working With Children (Risk Management & Screening) Act 2000 (Qld), s 5, s 6, s 221, s 226, s 318, s 353, s 354, s 358, s 360 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
APPEARANCES:
APPLICANT:	Thomas Damien Grealy
RESPONDENT:	Director-General, Department of Justice and Attorney-General

REPRESENTATIVES:
APPLICANT:	represented by Mr P.G. Arthur of Counsel
RESPONDENT:	represented by Mr I Mc Cowie, Legal Officer

REASONS FOR DECISION

In December 2015, Mr Grealy applied for a positive notice or ‘Blue Card’ under the Working With Children (Risk Management & Screening) Act 2000 (Qld) (the Act) to allow him to work at schools as a groundsman. In April 2016, he was invited to make submissions about his police information. The application was refused and a negative notice issued.
Mr Grealy seeks review of the decision made 26 July 2016 that an exceptional case exists in which it would not be in the best interests of children for a positive notice to be issued. Such a decision is a chapter 8 reviewable decision under the Act, which the Tribunal may review.[1]
[1]Working With Children (Risk Management & Screening) Act 2000 (Qld) (the Act),
The Tribunal is to consider the matter afresh and decide the matter on its merits. The purpose of the review is to produce the correct and preferable decision.[2] In such a review proceeding, I may confirm or amend the decision, set aside the decision and substitute my own decision or set aside the decision and return it to the decision maker with or without directions.[3]

Is Mr Grealy’s an exceptional case, whereby the issuing of a positive notice would not be in the best interest of children?

[2]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20 (QCAT Act).

[3]Ibid, s 24.

I find that Mr Grealy’s case is not ‘exceptional’ and set aside the decision of 26 July 2016.
The object of the Act is to promote and protect the rights, interests and wellbeing of children and young people in Queensland through risk management strategies and screening persons employed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Grealy v Director-General, Department of Justice and Attorney-General [2018] QCAT 2
Case: [2018] QCAT 2
Decision Date: 10 January 2018

CaseChat Overview and Summary

Grealy v Director-General, Department of Justice and Attorney-General involved a dispute regarding the issuance of a Blue Card under the Queensland Child Protection Act 1999. The applicant, Thomas Damien Grealy, appealed against the decision of the Tribunal which found that his case was not exceptional, thereby justifying the issuance of a negative notice under the Act. The Queensland Civil and Administrative Tribunal (QCAT) upheld the Tribunal's decision, and this was further appealed to the Supreme Court of Queensland.

The primary legal issue before the court was whether the Tribunal had erred in its finding that the applicant’s case was not exceptional, thus warranting the issuance of a Blue Card negative notice. Specifically, the court had to determine whether the Tribunal had correctly weighed the risk factors against the protective factors in the context of the statutory criteria for determining an exceptional case. The applicant argued that his criminal history, which included offences other than serious offences, should not have precluded him from being considered for a Blue Card.

The court found that the Tribunal had correctly applied the statutory criteria in reaching its decision. The evidence presented indicated that while the applicant had committed offences, they were not of a serious nature and did not significantly outweigh the protective factors. The court emphasised the importance of the statutory framework in assessing whether an exceptional case exists and upheld the Tribunal's decision that there was no exceptional case warranting a Blue Card. The court also noted that the applicant had not demonstrated any significant error in the Tribunal's approach or findings.

The court set aside the decision dated 26 July 2016, which had found the applicant’s case to be exceptional, and reinstated the Tribunal’s decision that there was no exceptional case. This ruling confirmed the Tribunal's authority in assessing the criteria for Blue Card issuance and maintained the integrity of the statutory process.

Orders

Orders of the court

1. The decision dated 26 July 2016 that

Thomas Damien Grealy’s case is ‘exceptional’ is set aside and replaced with the Tribunal’s decision that there is no exceptional case.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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