Director-General, Department of Justice and Attorney-General v Gavin Anthony Dickson [2024] QCATA 38

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Director-General, Department of Justice and Attorney- General v Gavin Anthony Dickson [2024] QCATA 38 PARTIES: DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL (applicant/appellant) v GAVIN ANTHONY DICKSON (respondent) APPLICATION NO/S: APL071-22 ORIGINATING APPLICATION NO/S: CML185 of 2020 MATTER TYPE: Appeals DELIVERED ON: 28 February 2024 HEARING DATE: 23 August 2023 HEARD AT: Brisbane DECISION OF: Senior Member Fitzpatrick ORDERS: The Appeal Tribunal orders that: (a) the decision of the Tribunal made 21 February 2022 is set aside. (b) an exceptional case exists such that it would not be in the best interests of children for the Chief Executive to issue a working with children clearance, within the meaning of s 221(2) Working with Children (Risk Management and Screening) Act 2000 (Qld). CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLES – RIGHT OF APPEAL – ERROR OF LAW – WHAT IS – DISTINCTION BETWEEN QUESTION OF LAW AND QUESTION OF FACT APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – EVIDENCE NOT AVAILABLE AT HEARING – WHEN ADMISSIBLE APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – STRONG REASONS FOR INTERFERENCE – GENERALLY – where appellant seeks rehearing – additional evidence in -- 1 of 10 -- 2 the form of national police check results report – where blue card negative notice issued due to various offences and domestic violence order breaches – whether there is an error of mixed fact and law – whether an exceptional case exists so that it would not be in the interests of children to issue a positive notice – whether the tribunal below erred in law in its conclusion based on available evidence Human Rights Act 2019 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld) Working with Children (Risk Management and Screening) Act 2000 (Qld) Attorney-General for the State of Queensland v Grant (No 2) [2022] QSC 252 Re TAA [2006] QCST 112 Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87 Flegg v Crime and Misconduct Commission & Anor [2014] QCA 42 House v The King (1936) 55 CLR 499 CDI v VAJ (No 1) (1998) 197 CLR 172 Rintoul v State of Queensland & Ors [2018] QCA 20, [10]. McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 APPEARANCES & REPRESENTATION: Applicant: A Bain of Crown Law Respondent: Self-represented REASONS FOR DECISION [1] The applicant, known as Blue Card Services, made a decision that within the terms of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’),1 there was an exceptional case and that the respondent Mr Dickson should be issued a negative notice with respect to the issue of a Blue Card. [2] On 21 February 2022 the Tribunal below ordered that the decision of Blue Card Services be set aside and replaced with the Tribunal’s decision that there is no exceptional case. [3] Blue Card Services filed an application for leave to appeal or appeal that decision. The ground of appeal is that the decision made by the Member at first instance was unreasonable based on the evidence available to the Member at the hearing. That ground of appeal raises an error of law. 1 Working with Children (Risk Management and Screening) Act 2000 (Qld) s 221(2) (‘WWC Act’). -- 2 of 10 -- 3 [4] Blue Card Services submit that errors of fact also occurred in relation to findings as to protective factors, when one considers the evidence before the Member. [5] I accept that Blue Card Services raise a question of mixed fact and law and that leave to appeal is required.2 To obtain leave Blue Card Services must show that the appeal is necessary to correct a substantial injustice and there is a reasonable argument that there is an error to be corrected.3 A further basis on which leave is granted is if there is a question of general importance upon which a decision of the appeal tribunal would be to the public advantage.4 [6] The appeal hearing proceeded pursuant to s 147 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) ('QCAT Act’)5 as a rehearing on the evidence before the Member below. I acceded to the application by Blue Card Services to refer to additional evidence. Two applications were made, first on 7 October 2022 and later on 2 December 2022. Additional evidence [7] The additional evidence is conveniently set out in a National Police Check Results Report current as at 6 July 2023 which was tendered at the appeal proceeding. The Report lists a number of offences which post-date the hearing below. Plainly, the additional evidence as to alleged offences and a conviction was not available at the hearing. [8] The offences are: (a) on 14 October 2022 failure to appear at the Southport Magistrates Court in relation to alleged contraventions of a domestic violence order (aggravated offence) said to have occurred on 22 March 2022, 25 March 2022; 27 August 2021, 9 September 2021; 3 April 2022; 4 September 2022; 29 July 2022, 4 August 2022; 4 May 2022 and 7 May 2022 (b) on 29 October 2022 a fine of $1,000, no conviction recorded, with respect to charges of failure to appear in accordance with an undertaking, contravention of a domestic violence order (aggravated offence) on 19 October 2022, wilful damage domestic violence offence on 19 October 2022, and a further contravention of domestic violence order (aggravated offence) between 17 October 2022 and 28 October 2022. [9] The submissions which accompany the application to rely on additional evidence filed 7 October 2022 are supported by the affidavit evidence of Jennifer Capper, Acting Principal Legal Officer, Blue Card Services, filed 7 October 2022 which attaches communications with the Queensland Police Service and relevant court briefs and associated documents. The submissions which accompany the application filed on 2 December 2022 is supported by a further affidavit of Jennifer Capper attaching relevant court briefs and associated documents. Importantly the last application relates to the matters for which Mr Dickson was finally dealt with by the Court. [10] The additional evidence includes Mr Dickson sending texts to another person to relay to Mr Dickson’s aggrieved wife which contained threats of violence to her, when the 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(b). 3 Rintoul v State of Queensland & Ors [2018] QCA 20, [10]. 4 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 578, 580. 5 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 147 ('QCAT Act’). -- 3 of 10 -- 4 ex-wife had the protection of a domestic violence order. Mr Dickson was also dealt with by the Court for an offence in contravention of an order relating to a different aggrieved person. The offence involved Mr Dickson attending the victim’s workplace armed with a knife. He slashed the victim’s bicycle tyres. The bicycle was used to ride to and from work. [11] I accept that the additional evidence reveals that since the hearing below Mr Dickson has allegedly committed numerous domestic and family violence offences involving his ex-partner, his children and another person between 22 March 2022 and 4 September 2022 and that he has been dealt with by the Court for contravention of domestic violence orders and wilful damage. The further alleged offending commenced less than 3 months after the review and occurred over about 6 months. [12] I accept the submission that the alleged offending is similar in nature to the offences considered by the Member below in the review hearing; that the alleged offences have not been prevented by any self-management skills, and the further alleged offending includes verbal abuse of Mr Dickson’s ex-wife in the presence of his children. The matters dealt with by the Court include threats of violence and actual damage to property. [13] I accept that the additional evidence is important because: (a) it is relevant to the determination of whether Mr Dickson’s case is exceptional in the sense contemplated by s 226(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld); (b) it is consequently relevant to the exercise of the Tribunal’s discretion in determining the application for leave to appeal or appeal; and (c) it is credible because it has been obtained from the Queensland Police Service. [14] Mr Dickson has been given an opportunity to address the additional evidence and whether the Appeal Tribunal should refer to that evidence. Mr Dickson has made written submissions and made oral submissions at the hearing. [15] Mr Dickson’s response to the additional evidence is set out in his application filed 8 December 2022. It is apparent that the conflict in Mr Dickson’s family relates to contact with his children and that context is proffered as a reason for the offending. He admits slashing his girlfriend’s tyres because he was angry but says that he was later remorseful. Mr Dickson says that his contraventions were minor. [16] Mr Dickson strongly objects to Blue Card Services providing additional evidence of contraventions after the hearing suggesting that Blue Card Services have delayed matters in order to take advantage of subsequent contraventions. [17] At the hearing Mr Dickson said that he accepted the charges and convictions but said they resulted from his custody battle and that his ex-wife has not given access to his children. Mr Dickson said there has been no violence, no abusive or physical violence. He did accept the content of the text messages but said his children were not involved. [18] I do not accept that Mr Dickson has established a good reason not to consider the additional evidence. -- 4 of 10 -- 5 [19] Where evidence relates to matters that occurred after the first hearing there is no requirement to show special grounds to justify its reception.6 [20] However, for the reasons submitted by Blue Card Services I consider the evidence is relevant to a rehearing of the matter and I will have regard to the material summarised in the National Police Check Report and attached to the affidavits of Ms Capper. The Member’s reasoning [21] The Member’s reasons set out that Mr Dickson was issued a negative notice because of recent and repeated offending in breach of domestic violence orders, offences which involved children including attending his former home and trying to gain entry resulting in an allegedly split door; texting his son and attending Nippers where his children were present in contravention of a domestic violence order. Mr Dickson was convicted for these offences. [22] Risk factors relevant to Mr Dickson included a lack of insight evidenced in Mr Dickson’s oral submissions to the Tribunal. The Member observed that he did not appear prepared, nor were his witnesses prepared. She noted that the background to Mr Dickson’s offences involved or were done in the presence of his own children and his actions were not a one-off. They were repeated, albeit in a concentrated period of time. It was noted that Mr Dickson disputed none of the domestic violence orders, other than one which was granted when he was not present. [23] The Member considered protective factors and relied on the evidence of Mr Santosha, a mental health counsellor who had seen Mr Dickson on nine occasions between March 2018 and early 2022. The Member noted that Mr Santosha said Mr Dickson now has a significant level of insight into what happened in the past with his former wife, that he has undertaken cognitive behavioural therapy, co-parenting communication training and conflict resolution skills training. The Member said that Mr Santosha’s evidence is that he had not seen the reasons document from Blue Card Services but knew that the blue card had been cancelled because of domestic related violence issues. [24] The Member said that she took comfort from knowing that Mr Dickson is voluntarily attending treatment and appears to have the tools to prevent him from or minimise the risk of transgressions in the future. [25] The Member noted there had been no contravention of the domestic violence orders since charges in 2020, and that the contraventions occurred in the context of a marriage breakdown, displacement of the family, liquidation of a business and financial concerns. The Member did not consider the incidents included physical or prolonged emotional abuse. [26] The Member considered another protective factor to be an improved relationship with Mr Dickson’s ex-wife. The Member accepted the evidence of Mr Dickson that he had learned from his mistakes and that through cognitive behaviour therapy he has the tools to minimise recidivism. 6 CDI v VAJ (No 1) (1998) 197 CLR 172. -- 5 of 10 -- 6 [27] The positive reference from Mr Ratajac, a former employer was found to be compelling, despite him not being able to answer questions directly which related to the reasons for the decision of Blue Card Services. [28] The Member thought the protective factors outweigh the risk factors in a qualitative sense and determined that the decision by Blue Card Services that Mr Dickson’s case is an exceptional case within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) be set aside and replaced with the Tribunal’s decision that there is no exceptional case. Submissions by Blue Card Services [29] At the hearing of the appeal proceeding Blue Card Services maintained only its first ground of appeal that the decision made by the Member at first instance was unreasonable based on the evidence available to the Member at the hearing. [30] It is submitted that the conclusion reached to set aside the decision of Blue Card Services was inconsistent with the factual findings made by the Member, the objective evidence led and heard at the hearing and ultimately the decision lacked reasonable justification. [31] Blue Card Services say that within the analysis of error in the exercise of a discretion explained in House v The King7 the Member reached a result which was unreasonable on the facts so that here has been a failure to properly exercise the discretion and a substantial wrong has occurred. That is an error of law. It is submitted that the Member was in error in her finding that Mr Dickson had insight into his behaviour and that he had the tools to manage his behaviour. That is said to be an error of fact. The Member thought that further contraventions of the domestic violence orders were unlikely, but the additional evidence shows that there have been additional contraventions. They are relevant issues of fact. [32] Blue Card Services point to the following matters: (a) Mr Dickson had been the respondent of various temporary and then a final protection order naming his ex-wife and children. That order was in place until 19 November 2023. (b) The first witness Mr Ratajac previously worked with the respondent but said that he did not know why Mr Dickson had been issued with a negative notice and had no understanding of Mr Dickson’s criminal history.8 (c) Mr Ratajac had little contact with Mr Dickson for about two years prior to the hearing. That was the period when breaches of the domestic violence orders occurred. (d) The witness Mr West knew nothing of any domestic violence. (e) The witness Mr Vandak did not understand there had been any domestic violence. [33] It is submitted that little if any weight should have been given to the witnesses in terms of protective factors because they did not know the details of Mr Dickson’s behaviour 7 (1936) 55 CLR 499, 504-505. 8 T, p 17, l5-6; T, p17. -- 6 of 10 -- 7 the subject of the negative notice and were not aware of all the circumstances of breach of the domestic violence orders, so that one could safely rely on their opinions as to Mr Dickson’s good character. [34] In relation to Mr Santosha’s evidence, it is said that he admitted he did not know the specifics of the case related to domestic violence.9 He said that he was not a domestic violence specialist and that he does not work in the context of men’s behavioural change.10 Rather, his expertise is in grief counselling associated with the breakdown of a relationship. Further it is said Mr Santosha’s evidence as to improvement in accountability for Mr Dickson’s behaviour was heavily qualified in that was what Mr Dickson told him.11 [35] It is submitted that Mr Santosha’s evidence should be viewed in light of Mr Dickson’s own evidence which failed to accept that his conduct amounted to domestic violence or that he bore any responsibility for his conduct.12 That is said to be consistent with the observation of the Member that: Mr Dickson squandered the opportunity to paint himself in a positive light by answering the majority of questions in a defensive manner. Indeed my view of Mr Dickson is that he did not understand nor fully appreciate the opportunity given to him in the hearing, to show how he has learned from the police incidents that have led him here. Rather, Mr Dickson seems slightly annoyed at the process… [36] Blue Card Services say that the Member considered it a protective factor that Mr Dickson had an improved relationship with his former wife. It is submitted that there was no evidence from the former wife. There was other evidence from Mr Dickson that he continued to cast blame on her and alleged that she was manipulating the system and their children.13 Given this evidence it is submitted that the Member should not have accepted a bare assertion of an improved relationship as a protective factor. [37] Blue Card Services say that the ultimate conclusion of the Member is at odds with the evidence and the rest of her findings as to defensiveness, lack of insight and having squandered the opportunity presented to him to demonstrate how he might behave differently in a similar situation. Further, evidence as to attendance for counselling revealed it was sporadic at best and should not have provided any level of comfort that would minimise risks in the future. There was no evidence of ongoing counselling. [38] In all it is submitted that it was unreasonable to conclude that the protective factors were of sufficient quality to overturn the decision. Having regard to the mandatory matters in s 226(2) of the WWC Act, it is submitted that the case is an exceptional one given Mr Dickson had been convicted and charged with offences related to domestic violence, the offences were committed within the past 3.5 years, occurred over a period of time rather than being an isolated incident. The offending sometimes occurred in front of his children. Also, Mr Dickson showed a lack of insight and lack of understanding as to how his behaviour impacts others. That is said to be relevant 9 T, p 57, l 25-29. 10 T, p 59, l 4-10. 11 T, p 57, l 34; T, p58, l 36. 12 T, p 36, l 15; T, p36, l 43-45; T, p 37, l 1-7. 13 T, p 64, l 14 -- 7 of 10 -- 8 to Mr Dickson’s employment which involves an aspect of mentoring and training young people. Mr Dickson’s submissions [39] Mr Dickson’s submissions are set out an application to the Tribunal filed 18 August 2022 and in submissions filed 8 December 2022. Additionally, he made oral submissions in the appeal hearing. [40] Mr Dickson gives an explanation for the domestic violence order being made in February 2018 arising out of his refusal to leave the family home and later allegations that he contacted his son on his birthday and hugged him at Nippers. He says that he did not know the terms of the order and that it was in any event a minor breach. [41] In the later submissions Mr Dickson blames his wife for breaching Court orders in relation to contact with his children. No supporting evidence is given of that allegation, but the family breakdown is offered as an excuse for his contraventions of any domestic violence order. [42] Mr Dickson points to the prejudice to his working life and participation in his children’s sporting and school activities through loss of his blue card. Consideration [43] I consider the ground of appeal is made out. I find that the conclusion of the Member below was made without an intelligible justification.14 [44] As to the error of law, the assessment of the evidence of Mr Dickson which concluded that he did not present himself in a good light and that he gave no evidence of insight into how he was in this position is at odds with the ultimate conclusion that Mr Dickson now had insight into his behaviour and had the tools to avoid any further contraventions of the domestic violence order. That ultimate conclusion was reached by reference to Mr Santosha’s evidence. The Member acknowledged that Mr Santosha did not know the contents of the reasons for the decision made by Blue Card Services. The Member does not say why that did not diminish the weight which could be accorded to Mr Santosha’s evidence. The Member did not address why she had confidence in Mr Santosha’s evidence in the face of his concession that he was not an expert in domestic violence or behaviour change and had only seen Mr Dickson sporadically over a five-year period. [45] In the circumstances the evidence of Mr Santosha as to Mr Dickson now having insight into his behaviour and having tools to prevent repetition of that behaviour cannot be safely relied upon, because his opinion is given without relevant expertise and without reference to all the facts. [46] Similarly, it was not reasonable to rely upon the evidence of Mr Dickson’s former employer who had not seen Mr Dickson for two years and who did not know the contents of the reasons for the decision made by Blue Card Services. Any opinion offered to the Tribunal by Mr Ratajac must necessarily be of limited weight given he did not have all the facts on which to base his opinions. Again, that was not addressed by the Member. 14 Flegg v Crime and Misconduct Commission & Anor [2014] QCA 42, [14]-[16]. -- 8 of 10 -- 9 [47] Finally, there was no evidence, apart from Mr Dickson’s evidence, as to an improved relationship with his wife. The result is that it was unsafe for the Member to characterise the evidence of an improved relationship as a protective factor. [48] As to the asserted errors of fact I have in conducting a rehearing by reference to the evidence below, especially that noted in Blue Card Service’s submissions, and by reference to the additional evidence, reached my own conclusion that there was no sufficient evidence on which it could be found that Mr Dickson showed insight into the nature or cause of his conduct which resulted in being charged and convicted of contraventions of domestic violence orders. I find that the Member was in error in so concluding. The additional evidence bears out that Mr Dickson did not at the time of the hearing or for a number of months thereafter have the necessary insight into the impact of his behaviour on others and the self-regulation skills necessary to prevent contravening the domestic violence orders in place at the time. [49] The significance of Mr Dickson’s insight into his own conduct is that if he is aware of the consequences of his actions on others, he is less likely to re-offend than a person who has no insight. This Tribunal has consistently accepted this proposition because of the impact of adults’ actions on children.15 [50] I do not consider the evidence given by Mr Dickson nor the submissions made by him in the appeal proceeding demonstrate any insight into the cause of his behaviour which resulted in contravention of domestic violence orders, nor as to the impact of his behaviour on his ex-wife and children. [51] The additional evidence is credible and prejudicial to Mr Dickson. The evidence reveals a man with limited self-control who behaves in a threatening and abusive way when confronted by issues which make him angry. I do not think the context of disputes over child custody provide any excuse. On the contrary the context makes it more important that Mr Dickson can demonstrate he is able to deal with setbacks in his family relationships in a mature and non-threatening way, so that one cannot say it is not in the best interests of children that he may work with children. The wilful damage conviction is particularly concerning because it involved use of a knife and was a spiteful and destructive act. It does not help Mr Dickson to say that he was angry, but subsequently remorseful. [52] I accept the submissions of Blue Card Services that by reference to s 226 of the WWC Act, the offences which occurred prior to the 21 February 2022 review decision and the offences which occurred after that date engage s 221(2) of the Act. I find that Mr Dickson is an exceptional case within the terms of the Act such that it would not be in the best interests of children for him to be issued with a positive notice. [53] I consider it a matter of general importance to ensure that decisions which impact the best interests of children are free from error. Because of the findings of error leave to appeal is granted. 15 Re TAA [2006] QCST 112, [97]; Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87, [52]. -- 9 of 10 -- 10 [54] Under s 147 of the QCAT Act the Appeal Tribunal may set aside the decision and substitute its own decision, which I will do. I do not consider that there is utility in remitting the matter for a re-hearing. [55] In making this decision I have given consideration to the terms of the Human Rights Act 2019 (Qld) and the human rights set out in the Act.16 Mr Dickson’s relevant human right is the right to a fair hearing.17 Mr Dickson has been accorded a full opportunity to respond to all submissions in this matter and was heard at the oral hearing which was conducted in accordance with the Queensland Civil and Administrative Tribunal Act 2009 (Qld). I do not consider that there has been any limitation of his human right. Order [56] The Appeal Tribunal orders that: (a) the decision of the Tribunal made 21 February 2022 is set aside. (b) an exceptional case exists such that it would not be in the best interests of children for the Chief Executive to issue a working with children clearance, within the meaning of s 221(2) Working with Children (Risk Management and Screening) Act 2000 (Qld). 16 Human Rights Act 2019 (Qld). 17 Ibid s 31; Attorney-General for the State of Queensland v Grant (No 2) [2022] QSC 252. -- 10 of 10 --