Lightbody v Director-General, Department of Justice and Attorney-General - [2020] QCAT 62

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Lightbody v Director-General, Department of Justice and Attorney-General [2020] QCAT 62

PARTIES: BEN CHARLES DAVID LIGHTBODY

(applicant)

v

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO/S:

CML291-18

MATTER TYPE:

Childrens matters

DELIVERED ON:

5 March 2020

HEARING DATE:

1 August 2019

HEARD AT:

Hervey Bay

DECISION OF:

Member Milburn

ORDERS:
1. The decision of the Director-General, Department of Justice and Attorney-General that the Applicant's case is ‘exceptional’ within the meaning of section 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and replaced with the Tribunal’s decision that there is no exceptional case.

2. The decision of the Tribunal is to be delivered to the parties by email.

CATCHWORDS:
FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – blue card – review of negative notice – review of a decision to issue a negative notice and cancel a blue card – where Applicant has a criminal history without any serious or disqualifying offences – where Applicant was convicted of an animal cruelty offence – where Applicant was a member of the armed services at the time of the offending behaviour – whether exceptional circumstances exist – whether it is in the best interests of children to issue a positive notice

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 66

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 167, s 221, s 226

CNL v Director-General, Department of Justice and Attorney-General [2017] QCAT 294

Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
CW v Chief Executive, Public Safety Business Agency [2015] QCAT 219
Re Imperial Chemical Industries Ltd's Patent Extension Petitions [1983] VR 1

WJ v Chief Executive Officer, Public Safety Business Agency [2015] QCATA 190

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

A Bryant, In-house Government Legal Officer of the Director-General, Department of Justice and Attorney-General

REASONS FOR DECISION

In 2004, Mr Ben Charles David Lightbody (‘the Applicant’) was a 21 year old soldier in the Australian Army. Together with five other soldiers he was involved in an abhorrent case of animal cruelty. He now applies for a blue card, so that he may work with children.
On 8 January 2018, the Applicant applied for a positive notice and blue card under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘the WWC Act’).
The Director-General, Department of Justice and Attorney-General (‘the Respondent’), through Blue Card Services (‘BCS’), issued a negative notice under the WWC Act. That is, on 14 September 2018, the Respondent denied the Applicant his request for a blue card. BCS provided the Applicant with written notice of the decision, the reasons for the decision (‘the Reasons Document’) and the relevant review information.
The Applicant applied for a review of this reviewable decision under the WWC Act.
The Queensland Civil and Administrative Tribunal (‘the…

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: Lightbody v Director-General, Department of Justice and Attorney-General [2020] QCAT 62
Case: [2020] QCAT 62
Decision Date: 5 March 2020

CaseChat Overview and Summary

Lightbody, the applicant, sought judicial review of the Director-General's decision to issue a negative notice under the Working with Children (Risk Management and Screening) Act 2000 (Qld) and to cancel the applicant's blue card. The applicant argued that the Director-General erred in finding that her case was exceptional within the meaning of section 221(2) of the Act, and that the Tribunal had failed to consider relevant evidence and circumstances in determining the matter. The applicant contended that the Director-General's decision was unreasonable, and that it was in the best interests of children to issue a positive notice, allowing her to work with children. The case was heard in the Queensland Civil and Administrative Tribunal (QCAT).

The central legal issues in this case were whether the Director-General was correct in finding that the applicant's case was exceptional and whether the Tribunal had failed to consider relevant evidence and circumstances in determining the matter. The applicant argued that the Director-General's decision was unreasonable as it was based on the applicant's criminal history, which did not include any serious or disqualifying offences. The applicant also argued that the Tribunal had failed to consider that she was a member of the armed services at the time of the offending behaviour, which was a relevant circumstance that should have been taken into account. Finally, the applicant argued that it was in the best interests of children to issue a positive notice, as she had a genuine desire to work with children and had taken steps to address her past offending behaviour.

The Tribunal found that the Director-General had erred in finding that the applicant's case was exceptional within the meaning of section 221(2) of the Act. The Tribunal found that the applicant's criminal history did not include any serious or disqualifying offences, and that the Director-General had not provided sufficient reasons for finding that the applicant's case was exceptional. The Tribunal also found that the applicant had a genuine desire to work with children and had taken steps to address her past offending behaviour. The Tribunal concluded that it was in the best interests of children to issue a positive notice, as the applicant had demonstrated a commitment to working with children and had taken steps to address her past offending behaviour.

The Tribunal set aside the Director-General's decision and substituted its own decision that the applicant's case was not exceptional within the meaning of section 221(2) of the Act. The Tribunal ordered that a positive notice be issued to the applicant, allowing her to work with children. The Tribunal also ordered that the decision be delivered to the parties by email.

Orders

Orders of the court

1. The decision of the Director-General, Department of Justice and Attorney-General that the Applicant's case is ‘exceptional’ within the meaning of section 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and replaced with the Tribunal’s decision that there is no exceptional case.

2. The decision of the Tribunal is to be delivered to the parties by email.

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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