Kenney v Acorn Child Care Centre Pty Ltd
[2011] QCATA 215
•15 August 2011
| CITATION: | Kenney v Acorn Child Care Centre Pty Ltd [2011] QCATA 215 |
| PARTIES: | Wallace James Kenney (Applicant/Appellant) |
| v | |
| Acorn Child Care Centre Pty Ltd (Respondent) |
| APPLICATION NUMBER: | APL142-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 15 August 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Grant leave to appeal, 2. Allow the appeal, and 3. Return the matter to the Tribunal to be heard again, by another Magistrate. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – FAILURE TO CONSIDER RELEVANT FACTORS – where Mr Kenney sought an order that he be relieved from paying Acorn Child Care Centre Pty Ltd the sum of $5,348.18 which it claimed was owed for outstanding child care fees – where an Acting Magistrate dismissed Mr Kenney’s claim on the grounds that the issues were a matter between Mr Kenney and the Family Assistance Office – where Mr Kenney seeks leave to appeal that decision – whether evidence and relevant factors properly considered at first instance – whether leave to appeal should be granted Queensland Civil and Administrative Tribunal Act2009, ss 142, 146 Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 3 ALN No 42, cited |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
Mr Kenney’s son was enrolled at the Acorn Child Care Centre by his ex-wife in March 2008. Initially the child was enrolled there by the ex-wife but later, at Mr Kenney’s request, the enrolment was changed to his name.
This case concerns the quite complex inter-relations between childcare service providers like Acorn, the persons who place children in those centres for care, and the Commonwealth Department of Education, Employment and Workplace Relations and the Family Assistance Office (FAO).
Neither the material before the Acting Magistrate who heard the matter, or the material provided by Mr Kenney as annexures to his written submissions in his application for leave to appeal, or the Acting Magistrate’s decision contains a clear explanation of the nature of that relationship, but there is sufficient to see that the FAO administers a scheme under which parents can receive payments by way of assistance with the fees charged by childcare providers.
The case that came before the Acting Magistrate in Bundaberg on 30 March 2010 was brought by Mr Kenney, seeking an order that he be relieved from paying Acorn the sum of $5,348.18 which it was claiming from him for outstanding fees. He alleged, in short, that Acorn was only claiming the fees because it had neglected to provide the FAO with Mr Kenney’s ‘Custom Reference Number’ and had, therefore, been unable to recover monies from the FAO and, instead, had looked to Mr Kenney for payment. His assertion is that Acorn was in breach of its own statutory obligations to inform the FAO of Mr Kenney’s CRN in circumstances where he was, himself, blameless.
The matter came before the Acting Magistrate in his capacity as an Ordinary Member of this Tribunal. He dismissed Mr Kenney’s claim on the grounds that it ‘… is a matter between himself and the Family Assistance Office with respect to the payment of childcare bonuses and not a matter between the parties’. Mr Kenney seeks leave to appeal that decision. Leave is necessary: QCAT Act, s 142 (3)(a)(i).
Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?
Mr Kenney’s application for leave to appeal admits that the case is ‘confusing’, but primarily focuses upon his claims that he was not given a proper opportunity to ‘describe’ his case, and that the Acting Magistrate was uninterested in making a real attempt to understand the issues and come to grips with them.
Those assertions are, regrettably, supported by the transcript of the proceedings. The Acting Magistrate said a number of surprising things. Initially, he rightly considered the question whether or not the respondent named in Mr Kenney’s original proceedings was the correct one, and properly amended its name to regularise the proceedings but, in doing so said:
See, this is the trouble with QCAT. You get in here you get these stupid forms they put out in a hurry and they change it all, then they lead you into error, because you do it yourself.[1]
[1] Transcript, p 4.
At page 7, the Acting Magistrate said to Mr Kenney ‘I think your claim is a lot of rubbish. I just want to get rid of it’. Shortly afterward he is recorded at page 8 saying: ‘I don’t want to spend time thinking about this. I’ll get rid of it in a hurry’. At page 10:
I mean this is, I don’t know. See, the last case I just done, I couldn’t work out which way to go so the Applicant didn’t get their order so he walked away unhappy. That was about a defect in a car, something totally different.
[10] Finally, at page 17: ‘I didn’t even bring my QCAT Rules down but that hasn’t changed, has it?’.
[11] It is unsurprising that these remarks have created, in one of the parties, a belief that their case was being dealt with in an uninterested and unduly peremptory way. The inescapable inference arising from a reading of the transcript is that the Acting Magistrate did not, with respect, make the necessary effort to understand the issues in the case before him, and came to a decision which reflected his expressed desire to dispose of the matter without doing so.
[12] This is a case in which, the transcript shows, the Presiding Member did not act in a way which accorded with the evidence because he did not take the time and trouble to give that evidence proper consideration.
[13] While this Tribunal has a statutory obligation to proceed expeditiously and with as little formality as possible, that flexibility of procedure does not go so far as to justify orders without a basis in evidence.[2]
[2]Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33, at 41 per Brennan J.
[14] It is an error of law to fail to consider relevant factors in arriving at a decision.[3] The factor which the acting Magistrate failed to consider here was the nature of the legal relationship between Mr Kenney, Acorn and the FAO.
[3] Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 3 ALN No 42.
[15] Mr Kenney filed detailed submissions about the nature of the payments, and his case, with his original application to the Tribunal. They are largely repeated in his submissions in his application for leave to appeal.
[16] It is apparent from that material that he had, at least, an arguable case that Acorn had a statutory obligation to keep its records about eligibility for payments to parents up to date, but failed to do so. That is not to say that his case will necessarily succeed, but he is entitled to a hearing in this Tribunal in which it is, at least, properly considered.
[17] The error of law means Mr Kenney’s application for leave to appeal should succeed. In his appeal, the fact that he was not given a fair hearing means he should have the opportunity to present his case again and have it properly considered.
[18] Under s 146 of the QCAT Act this Appeal Tribunal, in deciding an appeal against a decision on a question of law, may amongst other things set the decision aside and return it to the Tribunal for re-consideration. That is necessary here. The matter should, however, be heard by another Magistrate.
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