DJB v Director-General, Department of Justice and Attorney General [2025] QCATA 107

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: DJB v Director-General, Department of Justice and Attorney General [2025] QCATA 107 PARTIES: DJB (applicant/appellant) v DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY GENERAL (respondent) APPLICATION NO/S: APL124-24 ORIGINATING APPLICATION NO/S: CML180-22 MATTER TYPE: Appeals DELIVERED ON: 20 November 2025 (decision) 15 January 2026 (reasons) HEARING DATE: 23 July 2025 HEARD AT: Brisbane DECISION OF: Judicial Member Rinaudo AM ORDERS: IT IS THE DECISION OF THE APPEAL TRIBUNAL THAT: Pursuant to s 146 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the Tribunal is satisfied that an error of law has occurred and accordingly, leave to appeal is granted. The appeal is allowed. The decision to adjourn the proceedings is set aside and the matter is returned to the Tribunal for the substantive matter in proceeding CML180-22 to be determined at a final hearing. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – DENIAL OF NATURAL JUSTICE – where applicant sought review on merits of respondent’s decision – where applicant in underlying proceeding given notice of hearing three weeks before hearing – where tribunal had not communicated with parties for 10 months before notice of hearing sent – where applicant sought to have hearing adjourned – where applicant sent adjournment application -- 1 of 9 -- to tribunal four days after receiving notice of hearing – where member became aware of adjournment application on the day before hearing – where member determined hearing would proceed in applicant’s absence – where member determined matter would be heard on the papers and invited closing submissions from parties – whether member erred in dismissing application to adjourn hearing Queensland Civil and Administrative Tribunal Act 2009 (Qld) Working with Children (Risk Management and Screening) Act 2000 (Qld) Allen v Queensland Building and Construction Commission [2023] QCATA 66 Aon Risk Services Australia v ANU (2009) 239 CLR 175 Campbell v Queensland Building and Construction Commission [2021] QCATA 34 Kioa v West (1985) 159 CLR 550 APPEARANCES & REPRESENTATION: Applicant: A Raye instructed by LawRight Respondent: P McNeill, Legal Officer of Blue Card Services – Department of Justice REASONS FOR DECISION [1] In the underlying proceeding, the applicant seeks a review of the respondent’s decision to issue him a negative notice. [2] After deciding to dismiss the applicant’s application to adjourn the hearing on 4 and 5 April 2024 due to work commitments, the Member proceeded to hear the substantive matter in the absence of the applicant and directed that the matter would ultimately be determined on the papers. [3] By way of application for leave to appeal filed 8 May 2024, the applicant seeks leave to appeal the decision of the tribunal to dismiss his application to adjourn the hearing on 4 and 5 April 2024. [4] The applicant also seeks leave to rely on his affidavit sworn 3 June 2024 and filed in the proceeding below. As that affidavit pertains to the applicant’s circumstances regarding his non-attendance on 4 April and contains evidence relating to the substantive matters which fall to be determined by the tribunal below, leave is granted to the applicant for him to rely on his affidavit sworn 3 June 2024 in this appeal and the below proceeding. [5] This appeal proceeded to an oral hearing on 23 July 2025. At that hearing, the appeal tribunal indicated: (a) it was satisfied an error of law had occurred and leave to appeal would be granted with the appeal to be allowed; and -- 2 of 9 -- (b) the decision to adjourn the proceedings would be set aside and the matter would be remitted to the tribunal for the substantive matter in the below proceeding to be determined at a final hearing. [6] A sealed copy of the appeal tribunal’s decision was provided to the parties on 20 November 2025. [7] After the matter had been remitted to the tribunal, directions were made in the proceeding below permitting the applicant to file an updated statement as to his circumstances and matters relevant to his application for a positive notice as well as inviting the respondent to reconsider its decision upon receipt of that amended statement. In accordance with the parties’ availability, the tribunal then listed the matter for a two-day hearing in March 2026. [8] Below are the reasons for the appeal tribunal’s decision. Applicable law [9] The jurisdiction to hear appeals is conferred upon the appeal tribunal pursuant to section 25 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), which provides: The tribunal’s appeal jurisdiction is – (a) the jurisdiction conferred on the tribunal by section 26; and (b) the jurisdiction conferred on the tribunal by an enabling Act to hear and decide an appeal against a decision of another entity under that Act. [10] Section 26 of the QCAT Act states that: The tribunal has jurisdiction to hear and decide an appeal against a decision of the tribunal in the circumstances mentioned in section 142. [11] The applicant appeals pursuant to section 142 of the QCAT Act. Section 142(1) states as follows: A party to a proceeding may appeal to the appeal tribunal against a decision of the tribunal in the proceeding if a judicial member did not constitute the tribunal in the proceeding. [12] Section 142(3) states that an appeal under section 142(1) against any of the listed decisions of the tribunal, including an interlocutory decision, may be made only if the party has obtained the appeal tribunal’s leave. [13] In Allen v Queensland Building and Construction Commission [2023] QCATA 66 at [2], Judicial Member McGill SC summarised the approach to leave in the appeal tribunal: As a general proposition, when leave to appeal to the appeal tribunal is required, it will be granted only where there is a reasonable argument that the decision was attended by error and an appeal is necessary to correct a substantial injustice caused by that error, or where the appeal raises a question of general importance upon which further argument and a decision of the appeal tribunal would be to the public advantage. An appeal tribunal would not usually disturb findings of fact on appeal if the evidence is capable of supporting the finding, and it is not contrary to compelling interferences. If leave to appeal is granted, the appeal is by way of rehearing so far as it is against a decision on a question of fact, or of -- 3 of 9 -- mixed fact and law: the QCAT Act s 147. Otherwise it is an appeal which will only correct an error of law: the QCAT Act s 146. [14] The principles were also referred to by Senior Member Brown and Member Traves in Campbell v Queensland Building and Construction Commission [2021] QCATA 34 at [17]: The relevant principles to be applied in determining whether to grant leave to appeal are well established: is there a reasonably arguable case of error in the primary decision; is there a reasonable prospect that the applicant will obtain substantial relief; is leave necessary to correct a substantial injustice to the applicant caused by some error; is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage. [15] In the usual course, leave to appeal will usually only be granted where it is necessary to correct a substantial injustice to the applicant and where there is a reasonable argument that there was an error to be corrected. In this case, leave to appeal is required as the decision being appealed is not the tribunal’s final decision in the underlying proceeding.1 The present appeal is on a question of law, being whether the Member erred in refusing the applicant’s second application to adjourn the hearing. The parties’ positions [16] The applicant relies on the following matters, which he describes as grounds of appeal: (a) the Member did not afford natural justice to the applicant; (b) the Member erred when finding that the applicant ‘showed complete disregard, to the height of ignorance, of the need for efficiency in the conduct of the matter in this Tribunal given its limited and overstretched resources’ without sufficient evidence; (c) the Member failed to ensure that ‘so far as is practicable…all relevant material is disclosed to the tribunal to enable it to decide the proceeding with all the relevant facts’; and (d) the Member erred by concluding an oral hearing was not required and the matter could be decided on the papers by stating s 229(5) of the Working with Children (Risk Management and Screening) Act 2000 (Qld): mandates the minimum requirement for the effective merits review, by way of fresh hearing, to be conducted by the tribunal. There is nothing contained therein which dictates the requirement for an oral hearing. [17] The respondent contends the applicant has not established a material error of law nor has he demonstrated the established principles for the grant of leave to appeal have been met. The respondent’s position with respect to each of the applicant’s grounds of appeal is as follows. [18] The respondent disagrees that the applicant was denied procedural fairness on the basis that the applicant was afforded the opportunity to file written closing 1 QCAT Act s 142(3)(a)(ii). -- 4 of 9 -- submissions, and with the benefit of doing so after the respondent. The respondent submits the first ground of appeal should fail. [19] The respondent contends ground two should also fail on the basis that the impugned quote was ancillary to the Member’s reasoning for his decision, and therefore is unable to form a ground of appeal. The Tribunal understands the applicant’s appeal point goes to the remarks about the applicant throughout the reasons regarding his conduct in seeking the adjournment, which has been neatly encapsulated in the impugned quote by way of ‘summary’. The Tribunal understands the applicant is appealing the finding about the applicant’s purported attitude towards the tribunal and the adjournment entirely, the finding of which is not necessarily constrained by the single quote that makes up the applicant’s appeal ground. [20] The respondent notes the applicant’s submissions regarding appeal ground three repeat those set out in ground one except on the basis of s 28(3)(e) of the QCAT Act rather than natural justice principles. The respondent relies on its submissions in relation to ground one. [21] Finally, the respondent submits the Member’s reference to s 229(5) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’) was aimed at demonstrating the minimum requirements of natural justice which were applicable, not that the section provided for the power to proceed without an oral hearing. The respondent submits it was appropriate for the Member to refer to this section for this purpose and accordingly, ground four should fail. Leave to appeal and the scope of the appeal [22] The appeal tribunal takes the view that there is one ground of appeal: whether the Member erred in dismissing the application to adjourn the hearing. Grounds one to three as set out by the applicant are his arguments in relation to this appeal ground. [23] Leave to appeal is granted because the decision to adjourn was attended by error, being a failure to observe the rules of natural justice in the circumstances, and an appeal is necessary to correct a substantial injustice caused by that error. The substantial injustice is the Member’s proceeding to determine the applicant’s review application in his absence and with evidence that had been filed more than eight months ago and failing to afford him the opportunity to lead evidence that was current as at the date the matter fell to be heard and determined. I do not take the view that the applicant should be prejudiced in his review proceeding because he did not advise the tribunal of his 2024 roster upon receipt of it. [24] The applicant’s fourth ground of appeal appears to misunderstand why the Member referred to s 229(5) of the WWC Act and appears to attempt to rectify the basis of proceeding on the papers being pursuant to s 32 of the QCAT Act rather than s 229(5) of the WWC Act. The Member referred to s 229(5) of the WWC Act merely to state there was nothing in that Act that necessitated proceeding orally. The Member did not attempt to displace the tribunal’s discretion to proceed on the papers with s 229(5) of the WWC Act. Ground four fails. [25] It is noted the tribunal’s discretion to proceed on the papers is subject to its mandatory obligation to observe the rules of natural justice.2 2 QCAT Act s 28(3)(a). -- 5 of 9 -- The circumstances of the decision to adjourn that is the subject of this appeal The applicant’s first adjournment application [26] On 14 April 2023, the tribunal gave the parties notice that the matter was set down for a two-day hearing on 31 May and 1 June 2023. On 24 May 2023, the applicant applied for an adjournment of that hearing which the tribunal granted on 29 May 2023. The applicant sought the adjournment on the basis that he commenced new employment on a fly-in-fly-out basis and was not able to obtain leave to attend the hearing. In his application for an adjournment, the applicant provided the tribunal with his availability for the remaining six months of 2023, consistent with his employment roster. [27] On 14 June 2023, the applicant emailed the tribunal: (a) seeking the matter be re-listed for a two-day hearing on dates that were consistent with his availability that he provided in his application for an adjournment; and (b) advising he had no further material to be filed. [28] On 27 June 2023, the registry provided to the parties a sealed copy of the directions made by the tribunal that directed that, inter alia, ‘the matter will be re-listed for a two-day in-person hearing in Cairns at a date and time to be advised.’ The applicant’s second adjournment application [29] On 14 March 2024, some eight months later, the tribunal gave the parties notice that the matter had been set down for a two-day in-person hearing on 4 and 5 April 2024 in Cairns. That is exactly three weeks’ notice. There had been no communication between the parties and the tribunal since the registry emailed the parties a sealed copy of the directions made on 27 June 2023. [30] By 21 March 2024, noting the notice actually came to his attention on 15 March 2024, the applicant had filed his application to adjourn in the tribunal, having mailed it on 19 March 2024. [31] The Member became aware of the application to adjourn on 3 April 2024, the day before the hearing. The Member instructed the registry to email the parties advising the matter would proceed as scheduled with the applicant’s application to adjourn to be determined at the outset of the hearing. [32] The applicant did not attend the hearing on 4 April 2024, having had a conversation with the respondent’s solicitors on 3 April via phone call who did not oppose the adjournment and advised they would seek the adjournment at the hearing. The applicant says he was unaware the tribunal retained its discretion to dismiss his application in circumstances where the parties had come to an agreed position. [33] At the hearing on 4 April 2024, the respondent’s representative told the Member he was not in a position to proceed and sought that the matter be adjourned. When the Member indicated he was not minded to adjourn, the respondent’s representative made submissions about the timing between the parties’ receipt of notice of hearing and the actual hearing (being three weeks), together with the applicant’s attempts to bring his application to adjourn to the tribunal’s attention in a sufficiently timely manner before the hearing, being a salient feature in support of the adjournment. -- 6 of 9 -- Despite this, the Member proceeded to hear the matter and dismissed the application to adjourn. Whether the Member erred in dismissing the application to adjourn [34] The Member relied on Aon Risk Services Australia v ANU3 to support his decision to dismiss the adjournment application on the basis that the tribunal’s limited resources are not to be wasted by the applicant’s failure to adhere to the hearing date of which he had proper notice. [35] The Member referred to the following passage of Mason J in the High Court’s decision of Kioa v West:4 What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject matter, and the rules under which the decision-maker is acting....5 In this respect the expression “procedural fairness” more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations… When the doctrine of natural justice or the duty to act fairly in its application to administrative decision-making is so understood, the need for a strong manifestation of contrary statutory intention in order for it to be excluded becomes apparent. The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case?6 [36] The circumstances of this case are a helpful starting point. [37] The tribunal’s purpose in its review jurisdiction is to produce the correct and preferable decision and it must hear and decide the review by way of a fresh hearing on the merits. In hearing and deciding this review, the tribunal is tasked with conducting a risk assessment of the applicant to determine whether his case is an ‘exceptional case’ such that he should be issued a positive notice.7 In making such a determination, the tribunal is required to consider, inter alia, the applicant’s conduct since the conduct that gave rise to the respondent’s decision to issue a negative notice and any information given by the applicant in relation to his application.8 It is evident that the considerations under the enabling Act necessitate a consideration of the evidence that is current as at the time the matter falls to be determined. It is also evident that the applicant intends to rely, and leave has been granted for him to rely, on evidence that has come into existence in the intervening period, as set out in his affidavit sworn 3 June 2024. 3 (2009) 239 CLR 175. 4 (1985) 159 CLR 550. 5 Ibid 584. 6 Ibid 585 (emphasis in original). 7 WWC Act s 229. 8 See, eg, ibid, ch 8, pt 4, div 9, subdivision 4. -- 7 of 9 -- [38] The matter remained in listing abeyance for some eight months. That is no criticism of the tribunal or registry because, as observed by the Member, its resources are significantly limited and overstretched. I do not consider it fair, however, to impose an obligation on a self-represented party to advise of his roster, especially when a registry officer could have contacted the parties to acknowledge the passage of time since any last communication, and given that passage of time, ask them: (a) whether either of them wished to file any further evidence that they intended to rely on at the hearing;9 and (b) for their mutual availability in the month of April to enable the tribunal to consider listing the matter. [39] The rules under which the Member was acting are those in the enabling Act and the QCAT Act. Most relevantly for this decision are the tribunal’s mandatory rules obligations under s 28 of the QCAT Act, as follows, relevantly: … (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; (b) … (c) … (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 relevant facts. [40] While it is true the applicant was afforded an opportunity to file his written closing submissions, that does not afford him an opportunity to adduce any oral evidence for him to make submissions about in those submissions (noting that closing submissions are generally confined to the evidence that was led at the hearing). It was the applicant’s intention to adduce oral evidence including from five witnesses who he intended to call. [41] The decision as to whether to grant the applicant’s second adjournment application fell to be determined against this background. I am not satisfied the Member had due regard to how the passage of time can affect an applicant’s evidence in a review matter of this kind, which consequently was contrary to the tribunal’s obligations in s 28(3)(a) and (e). [42] The Member also discussed the lack of explanation or supporting material in the applicant’s application to adjourn. While I agree more information could have been provided by the applicant, the delay is partially a product of the application taking two weeks to be acknowledged by the registry and referred to the Member. I suggest that if the Member had received the application earlier, he could have taken steps to seek such an explanation from the applicant as well as the respondent’s attitude towards 9 Which would be consistent with s 28(e) of the QCAT Act. -- 8 of 9 -- the application. This is a course which may readily be said to be commonly adopted by tribunals and courts upon receiving an interlocutory application. [43] I regard the applicant’s lack of explanation a product of his unfamiliarity with tribunal processes. I do not, however, consider his unfamiliarity constitutes blatant disregard for the tribunal and its resources. I further accept that the applicant’s unfamiliarity with tribunal processes led him to believe that the adjournment would be granted on the basis that both parties agreed to it. [44] The Member held that the applicant had a positive obligation to advise the tribunal of his unavailability to attend a hearing in 2024 after he received his roster. In this regard the Member referred to s 45 of the QCAT Act, which provides: Each party to a proceeding must act quickly in any dealing relevant to the proceeding. [45] I do not think the applicant should be prejudiced because he did not proactively update the tribunal with his 2024 roster. Section 45 of the QCAT Act is entitled ‘general obligation of parties’. Parties are obliged to give due consideration to and action any matter which may arise during a proceeding in a timely fashion. I do not take the view that s 45 readily supports the notion that the applicant had a positive obligation to provide the tribunal with a copy of his 2024 roster, particularly when he had not heard from the tribunal for six months at the time of receiving his roster. [46] Additionally, the respondent has the benefit of being a legally represented entity; if the legal officer with carriage of the matter was unavailable to attend the hearing, another legal officer would most likely be sent in their place. The respondent did not advise the tribunal of its unavailability but just so happened to be available on the date the matter was listed. [47] It is trite to say that I consider the applicant did act quickly in lodging his second application to adjourn the hearing. He became aware of the notice of hearing on Friday 15 March and had done all things necessary to see to that application being filed in the registry within four business days, including the two business days during which the application was in postal transit to the tribunal. It took longer for the application to reach the Member than it did for the applicant to file it in the registry. [48] For these reasons I am satisfied an error of law has been made. Leave to appeal is granted and the appeal is allowed. [49] Given the appeal tribunal’s finding with respect to the ground of appeal, it is not necessary to engage in discussion about the applicability of s 31 of the Human Rights Act 2019 (Qld). -- 9 of 9 --