DBC v Director-General, Department of Justice and Attorney-General [2021] QCAT 21

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: DBC v Director-General, Department of Justice and Attorney-General [2021] QCAT 21 PARTIES: DBC (applicant) v DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL (respondent) APPLICATION NO/S: CML228-19 MATTER TYPE: Childrens matters DELIVERED ON: 27 January 2021 HEARING DATE: 30 September 2020 HEARD AT: Brisbane DECISION OF: Member Howe ORDERS: The respondent pay the applicant’s costs fixed at $5,000 within 14 days of the date of order. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where the applicant sought review of a decision of the Department not to issue a positive notice for a blue card – where six days before hearing the Department advised the hearing would not be necessary – where the Tribunal determined that the decision under review should be set aside and that the applicant’s case was not exceptional requiring issue of a negative notice – where the Department’s case was always weak – where the applicant’s costs of engaging legal representation could have been avoided had the Department acted earlier – where the applicant was entitled to costs as fixed Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 102, s 107(1) APPEARANCES & REPRESENTATION: Applicant: D Keane of Counsel instructed by Derwent Perez Lawyers Respondent: Self-represented by in-house lawyers -- 1 of 4 -- 2 REASONS FOR DECISION [1] The applicant (DBC) was refused a blue card and brought proceedings in the Tribunal to review that decision. [2] The matter was listed for in-person hearing on 30 September 2020. [3] On 25 September 2020 the Department informed the legal representatives for DBC in writing that the hearing would not be necessary because the Department had reconsidered its decision and had cancelled the blue card negative notice. [4] The applicant’s legal representatives objected to that approach and required that the Department agree to a consent order. [5] On the morning of hearing on 30 September, when the matter came before me, I informed the parties that, regardless of consensus (though it became apparent that that could not be reached), a consent order could not be made because the matter required an exercise of discretion on the part of the Tribunal. [6] Whilst no consent order was appropriate, all the evidence intended by both parties had been filed and it disclosed quite clearly that DBC’s was not an exceptional case that should disqualify him from a positive notice. [7] With the parties resiling from a hearing yet requiring a conclusion to the proceedings I made that finding based on the evidence filed. I found that the decision made by the Director-General, Department of Justice and Attorney-General, that DBC’s case was an exceptional case within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) should be set aside and replaced with the Tribunal’s decision that there was no exceptional case. [8] The applicant has asked for costs in the amount of $5,000. He says he has in fact incurred legal expenses of $26,702.50 responding to the Department’s erroneous refusal of a blue card. [9] The parties have filed submissions about costs. [10] Ordinarily parties in the tribunal bear their own costs. The tribunal may make an order requiring a party to pay costs however where the tribunal considers the interests of justice require it. [11] In deciding whether an order for costs is appropriate, s 102 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) sets out a number of factors for consideration. [12] Amongst other things, the Tribunal may have regard to the way a party has acted and whether it has caused a party unnecessary disadvantage; the nature and complexity of the dispute; the relative strengths of the claims by each; and in a proceeding for the review of a reviewable decision, whether the applicant genuinely attempted to enable and help the decision-maker make the decision on the merits. [13] The applicant says he was put to considerable unnecessary expense by requiring him to proceed to an in-person hearing with Counsel. He says it should have been apparent that it was appropriate to set aside the decision under review without that. [14] The applicant says, at latest, his strong case when compared to the meagre evidence offered against him as at the date of the compulsory conference on 25 June 2020 should have made the eventual outcome very evident. -- 2 of 4 -- 3 [15] The applicant says it was the Department that required an in-person hearing. That was unnecessary. The matter could have been dealt with on the papers. [16] Further, the applicant says that it was only on 24 September 2020, six days before hearing, that the Department advised by telephone that the hearing would not proceed. That was because it had “cancelled” the negative notice which was then under review in the Tribunal. [17] Then on 25 September 2020 the Department did indeed purport to cancel the negative notice, though it had no power to do that. Further, though claiming it had power to cancel the negative notice, there was no suggestion that a positive notice would be substituted for the negative notice. [18] The applicant says all its evidence was provided to the Department well before the compulsory conference on 25 June 2020. [19] What does the Department say? [20] The Department says the complaint needed investigation. It was not until 28 July 2020 that material sought from interstate police agencies and the court in Victoria was to hand. [21] Even on its own submissions however, all the material necessary for it to make (or clarify that its case could not be made) had been received by 28 July 2020. [22] The case against the complainant turned on the complaints of the applicant’s ex-wife from a very short marriage. [23] The charges brought against him were brought some significant period ago in 2015. They concerned complaints made against him by his second wife after their very short marriage of some nine months failed. [24] The accusations were of domestic violence by him against her. All the complaints were made after separation. [25] The interstate material showed that those jurisdictions had investigated the applicant on the complaints of the ex-wife. In none of those jurisdictions were the complaints substantiated. [26] I indicated at hearing that two things stood out in the matter, the evidence of good character offered in support of the applicant by his first wife of many years and the comments of the Magistrate made when dismissing the charges against the applicant in Western Australia as well as the award of costs against the police there. [27] Apart from the complaints of the ex-wife there was no evidence against the applicant suggesting his was an exceptional case not justifying a positive notice. [28] In the Department’s reasons for the original decision, which decision formed the subject of the review, the following statement was made: While I have taken into account the fact that the charges were discontinued, his submissions as a whole do not address many of the factors of concerns arising from the material. Regardless of the ultimate outcome of the criminal charges, I am of the view that these concerns are highly relevant to my consideration of his eligibility to hold a blue card.1 1 Reasons for decision to issue a negative notice page 12. -- 3 of 4 -- 4 [29] The only “concerns” seem to have been the persuasively graphic complaints of the ex-wife to which the decision-maker gave great credence despite the weight of the denials and the significant other material supplied by the applicant to assist the Department in making its decision (which is a factor for consideration in awarding costs). [30] By 25 August 2020 when the applicant sought leave of the Tribunal to be represented at hearing by solicitors and by Counsel, all the available material was before the Department and its weak case should have been evident. Had it acted then, the costs of engaging legal representation for the hearing may have been avoided. It did not act then, however. [31] Six days before hearing, apparently accepting the weakness of its case, the Department attempted to extricate itself from the problem it had created and persisted with for far too long by claiming a power to simply set aside the decision under review and walk away from the hearing in the Tribunal and any consequences. The Department “informed” the Tribunal and the applicant that the hearing listed for 30 September 2020 would no longer be necessary. That was beyond the Department’s power once review proceedings in the Tribunal had commenced. [32] What the interests of justice clearly dictate here is that as and from 25 August 2020 the unnecessary costs of hearing incurred by the applicant should be paid by the Department. [33] In the Tribunal costs are to be fixed if possible.2 I shall attempt to do so. [34] In an affidavit filed by the applicant he says he has incurred $4,180 in solicitors’ charges after the Department claimed the power to set aside its decision under review, that is after 24 September 2020. Of that $1,200 represented costs incurred responding to the Department’s claim that the Tribunal had no jurisdiction in the review because the Department had cancelled the negative notice. [35] Counsel’s fees are $4,950 for preparation for hearing and $4,950 for fee on hearing. [36] The appropriate scale of costs for assessment in my opinion is the District Court scale of costs. Unfortunately there is no detailed breakdown given of the work done associated with the costs charged above. [37] The applicant seeks costs of $5,000. That seems very reasonable given it amounts to something just over one third of solicitor own client costs incurred. It seems an appropriate award. [38] The Department must pay the applicant’s costs fixed at $5,000. 2 QCAT Act, s 107(1). -- 4 of 4 --