Maleny District Community Learning Centre Ltd v Non-State Schools Accreditation Board
[2005] QSC 235
•26/08/2005
SUPREME COURT OF QUEENSLAND
CIVIL JURISDICTION
[2005] QSC 235
BYRNE J
No BS705 of 2004
| MALENY DISTRICT COMMUNITY LEARNING CENTRE LTD (ACN 077 579 027) | Applicant |
| and | |
| NON-STATE SCHOOLS And THE HONOURABLE, THE MINISTER | First Respondent Second Respondent |
BRISBANE
..DATE 26/08/2005
ORDER
HIS HONOUR: In January 2004, the applicant commenced proceedings for a statutory order for review against the respondents, the Accreditation Board and the Minister for Education.
That came before Atkinson J on 21 March on the hearing of the application for review of the decisions of the Board and the Minister.
The nub of the complaint agitated was a denial of procedural fairness said to be involved in the Board's having acted on an assessor's report which the applicant had not seen, and the Minister's having acted on documents which the applicant had not seen.
Atkinson J ordered that the applicant make additional submissions to the Minister within 21 days and that the Minister make a decision within 22 days of the date of her Honour's order.
The reason for that order is that the documents which the applicant had not seen which were before the Accreditation Board and the Minister had been made available to the applicant in evidence adduced in responding to the application for judicial review.
The evident intent of her Honour's order was that the applicant - by this time in possession of the documents the denial of access to which was said to have constituted the absence of procedural fairness - was in a position to make appropriately informed submissions to the Minister, who was engaged in an apparently full process of review of the decision of the Accreditation Board to withhold accreditation of the applicant's school.
The applicant then made the additional submissions anticipated by the order of Atkinson J.
On 9th May, the Minister made her decision. Its effect was to confirm her earlier decision, which was to decline to refer the matter back to the Accreditation Board for further consideration.
The Minister, as her letter that conveyed the decision reveals, considered that the school the subject of the accreditation dispute was not complying with nominated provisions of a pertinent regulation.
As the Minister's second decision effectively confirmed the first, while the second decision remained in place, no useful purpose could be served by continuing a challenge to the earlier.
On 19th May 2005, no challenge having been made, the Crown Law Office wrote to Mr Sheppard, who has appeared to argue the case for the applicant, drawing attention to the Minister's "fresh decision" and asking whether the applicant proposed to discontinue the proceedings. An answer in the negative was conveyed shortly thereafter.
It has become apparent during the argument that no useful purpose could be served by inquiring into the merits of the applicant's contention concerning the alleged denials of procedural fairness involving the proceedings before the Board and the Minister initially.
There has been no challenge to the Minister's second decision. In those circumstances, for orders to be made which called into question the validity of the first, could not serve any useful purpose.
Futility is, as Thomas J said in Pitman v. State of Queensland [1999] 2 QdR 71 at 74, a ground for exercise of the discretion in proceedings such as this to stay or dismiss the application.
As I have said, the present application, should it succeed to any extent, could not serve any useful purpose.
The application will therefore be dismissed.
The next question is what ought to happen with respect of the costs. They are sought from the date of the Minister's letter.
I consider that, having received the letter of 19th May 2005, the proper course for the applicant to have adopted was to succumb to the proposal that the principal proceedings be discontinued.
Unnecessary costs have been incurred because the applicant declined to accede to that proposal. Those costs ought to be borne by the applicant.
The orders therefore will be that the application filed on 20th January 2004 is dismissed. I further order that the applicant pay the respondents' costs of and incidental to the application incurred from 19th May 2005, to be assessed.
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