Director-General, Department of Justice and Attorney-General v PML [2021] QCATA 51

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Director-General, Department of Justice and Attorney- General v PML [2021] QCATA 51 PARTIES: DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL (applicant/appellant) v PML (respondent) APPLICATION NO/S: APL108-19 ORIGINATING APPLICATION NO/S: CML274-17 MATTER TYPE: Appeals DELIVERED ON: 19 April 2021 HEARING DATE: 2 April 2020 HEARD AT: Brisbane DECISION OF: Senior Member Guthrie, Presiding Member Browne ORDERS: Leave to appeal refused. Grounds 1, 2, 5, 6 and 7 are without merit. Appeal allowed on Grounds 3 and 4. The application for leave to amend the application for leave to appeal or appeal to include a further ground of appeal filed on 16 April 2020 is refused. The application for leave to rely upon fresh evidence filed on 11 October 2019 is refused. The Tribunal’s decision of 5 April 2019 that there is no exceptional case in respect of PML is set aside. The application to review the decision of the Director-General, Department of Justice and Attorney-General dated 16 October 2017 to issue a negative notice to PML is remitted back to the Tribunal, differently constituted, for reconsideration. THE APPEAL TRIBUNAL DIRECTS THAT: -- 1 of 19 -- 2 The application is listed for a Directions Hearing before the Tribunal on a date and time to be advised by the Tribunal. Further directions will be made by the Tribunal at the Directions Hearing about the filing of any further material by either party to be relied upon at the hearing and to list the matter for an oral hearing on a date and time to be advised. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – WHAT IS – where Tribunal found that there was no ‘exceptional case’ – whether Tribunal properly exercised discretion – whether Tribunal failed to appreciate the purpose of the statutory regime – where Tribunal erred on exercise of discretion – where Tribunal placed undue weight on material produced by the Department of Communities, Child Safety and Disability Services – where Tribunal failed to take into account relevant material produced by the Department of Communities, Child Safety and Disability Services Child Protection Act 1999 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 21(2), 28(3)(b), 146(c) Working with Children (Risk Management and Screening) Act 2000 (Qld) ss 5, 6, 221(2), 226(2), 228 Browne v Dunn (1893) 6 R 67 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 Ellis & Anor v Queensland Building Services Authority [2010] QCATA 93 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 House v King [1936] 55 CLR 499 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Pickering v McArthur [2005] QCA 294 PML v Director-General, Department of Justice and Attorney-General [2019] QCAT 88 Smart State Vehicle Rental Pty Ltd v Tri Asset Protection Systems Pty Ltd [2013] QCATA 16 APPEARANCES & REPRESENTATION: Applicant: S. Munasinghe, Counsel of Crown Law Respondent: J. Mallory, solicitor of Aboriginal & Torres Strait Islander Legal Service (Qld) Ltd -- 2 of 19 -- 3 REASONS FOR DECISION PML, a kinship carer for some of her grandchildren, held a blue card from 4 September 2008 until the Director-General, Department of Justice and Attorney- General (‘DJAG’) re-assessed her eligibility to hold the card and issued a negative notice on 16 October 2017. DJAG’s written reasons for cancelling PML’s blue card identify offences relating to violence and drugs and concerns identified by the Department of Communities, Child Safety, Disability Services (‘the Department’) as it was then called relating to PML’s behaviour as a kinship carer for her grandchildren. PML applied to the Tribunal to review DJAG’s decision of 16 October 2017 to issue a negative notice. This required the Tribunal below to conduct a fresh hearing on the merits to determine whether or not there is an ‘exceptional case’ for PML within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘the Act’). Relevantly, s 226(2) of the Act prescribes a number of matters that the Chief Executive or the Tribunal on review must take into account in determining whether there is an ‘exceptional case’. The Act does not define the meaning of an ‘exceptional case’. There is, however, established authority that the determination of whether there is an ‘exceptional case’ involves the exercise of a broad discretion that should be ‘unhampered by any general rule and is to be construed in the particular context of the legislation’.1 The role of the Tribunal on review is to arrive at the correct and preferable decision. In the proceeding below in the Tribunal’s review jurisdiction, some of the material included documents obtained by DJAG from the Department through a notice to produce. The notice to produce documents contained details of the Department’s concerns and substantiated findings relating to PML’s care of her grandchildren. Following an oral hearing, the Tribunal below set aside DJAG’s decision that there is an ‘exceptional case’ and by way of a substituted decision found that there is no ‘exceptional case’ in respect of PML.2 DJAG now appeals the Tribunal’s decision that there is no ‘exceptional case’.3 In the application for leave to appeal or appeal, DJAG identifies seven grounds of appeal. DJAG also applies for leave to rely upon fresh evidence that was not before the Tribunal below.4 At the oral hearing before the Appeal Tribunal, DJAG summarised the two primary grounds of appeal referred to as ‘two propositions’ that are also reflected in Grounds 3 and 4, respectively of the appeal as set out below. Firstly, the learned Member erred by placing undue weight on the Department’s decision to return the children to PML’s care. In the oral hearing, DJAG referred to the transcript of the Tribunal proceeding below and submitted that the learned Member expressed an unwillingness to make a finding in terms outside of the Department’s decision to return the children to PML’s 1 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492. 2 PML v Director-General, Department of Justice and Attorney-General [2019] QCAT 88, 22 [69]. 3 Application for leave to appeal or appeal filed 2 May 2019. 4 Application for miscellaneous matters (seeking leave to rely upon fresh evidence) filed 11 October 2019. -- 3 of 19 -- 4 care. Secondly, the learned Member did not properly take into account material obtained by a notice to produce from the Department. At the oral hearing before the Appeal Tribunal, DJAG made an oral application for leave to include a further ground of appeal that raises an issue of procedural fairness in the learned Member’s conduct of the hearing below. At the conclusion of the oral hearing, the Appeal Tribunal made directions for DJAG to file any application for leave to amend the application for leave to appeal or appeal to include a further ground of appeal and directed PML to file any written submissions in response.5 After the oral hearing, the finalisation of this proceeding APL108-19 was delayed awaiting DJAG’s application for leave to include a further ground of appeal and PML’s written submissions in response. The proceeding APL108-19 was further delayed because after the oral hearing, PML filed an application seeking an order that the Appeal Tribunal recuse itself on the basis of apprehended bias. The Appeal Tribunal made further directions responding to PML’s application for the Appeal Tribunal to recuse itself.6 On 7 July 2020, PML withdrew her application for the Appeal Tribunal to recuse itself. The present matter before the Appeal Tribunal is the application for leave to appeal or appeal that raises seven grounds of appeal, DJAG’s application for leave to raise a further ground of appeal and DJAG’s application for leave to rely upon fresh evidence.7 In the application for leave to appeal or appeal, DJAG seeks final orders that the Appeal Tribunal set aside the decision of the learned Member made on 5 April 2019 and substitute therefor the original decision made by DJAG.8 Grounds of appeal DJAG’s grounds of appeal are set out below as follows: (a) That the learned Member misdirected himself as to whether PML presented an unacceptable risk to children in determining whether an exceptional case exists; (b) That the learned Member erred in determining whether there is an exceptional case pursuant to s 221(2) of the Act by failing to have sufficient regard to and/or failing to adequately address each of the mandatory considerations set out in s 226(2) of the Act; (c) That the learned Member erred by placing undue weight on the Department’s decision, notwithstanding significant child protection concerns, to return the children to PML’s care; (d) That the learned Member failed to take into account material obtained from the Department by way of a notice to produce, and therefore failed to take into consideration relevant considerations raised in that material; 5 Appeal Tribunal’s directions dated 2 April 2020. 6 Appeal Tribunal’s directions dated 15 May 2020. 7 See Appeal Tribunal’s directions dated 6 August 2020. 8 Application for leave to appeal or appeal filed 2 May 2019. -- 4 of 19 -- 5 (e) That the learned Member erred by misdirecting himself that conclusive evidence was required of the allegations contained in the material from the Department; (f) That the learned Member erred by misapprehending the fundamental protective nature of the statutory regime of the Act and his findings were adversely affected; and (g) The learned Member failed to take into account the relevant consideration of concerns expressed by social worker Mr Fraser and PML working in other areas of regulated employment outside of caring for her grandchildren. It is convenient for us to firstly consider DJAG’s two primary contentions raised in the oral hearing before the Appeal Tribunal that are also reflected in Grounds 3 and 4 of the appeal. In our view, Grounds 3 and 4 properly framed identify errors of law in the learned Member’s exercise of discretion in considering, or failing to properly consider, relevant material to determine whether there is an exceptional case pursuant to s 221(2) of the Act. It is established law that DJAG, as the applicant, must identify some error in the exercise of the Tribunal’s broad discretion such that the Tribunal acted upon a wrong principle; or allowed extraneous or irrelevant matters to guide or affect him; made mistakes of facts; or did not take into account some material consideration.9 It is not enough that the Appeal Tribunal, had they been in the position of the Tribunal below, would have taken a different course.10 For reasons discussed below, Grounds 3 and 4 identify errors in the learned Member’s exercise of discretion in placing undue weight on the Department’s decision to return the children to PML and in failing to take into account relevant material obtained from the Department through a notice to produce. For completeness, we have also considered below the remaining grounds of appeal that raise errors of mixed fact and law for which leave to appeal is required. Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.11 The question of whether there is an issue of general importance, upon which further argument and a decision of the appellate court or Tribunal would be to the public advantage, is also relevant.12 For reasons that follow, we do not consider that grounds 1, 2, 5, 6 and 7 are substantiated and so leave to appeal is refused. Grounds 3 and 4 – Error in the Tribunal’s Exercise of Discretion In addressing Ground 3 of the appeal, DJAG submit that the learned Member placed significant and undue weight on the Department’s decision to return the children to PML’s care.13 DJAG refer to relevant parts of the transcript of the hearing below and the exchanges between DJAG’s legal representative and the learned Member during 9 House v King [1936] 55 CLR 499, 504. 10 Ibid. 11 Pickering v McArthur [2005] QCA 294, 2 [3] (Keane JA). 12 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389 (Carter J); McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 578 (Macrossan CJ), 580 (McPherson J). 13 Appellant’s outline of argument filed 4 July 2019, [27]. -- 5 of 19 -- 6 the oral hearing at first instance.14 Ultimately, DJAG submits that the learned Member failed to appreciate that the test applied by the Department with respect to returning the children to PML is for a different purpose to the test to be applied by the Chief Executive or DJAG and the Tribunal on review for the screening of persons employed in a particular employment or carrying on particular businesses.15 In the oral hearing before the Appeal Tribunal, DJAG submitted that the approach the learned Member ought to have taken was one where he considered the totality of the evidence and material that did not only comprise of substantiated incidents in terms of assessing risk. DJAG submitted that it is clear from reading the transcript of the proceeding below that the learned Member placed an over reliance on findings already made by the Department. In the oral hearing, DJAG referred us to the overarching contentions made in support of Ground 1 and submitted that there has been a misdirection by the Tribunal below as to whether PML presented an unacceptable risk by reason of the overreliance on the Department’s findings. We have considered the Tribunal’s written reasons and the transcript of the proceeding below. The Tribunal’s reasons correctly identify the decision the subject of review and the relevant sections of the Act as whether or not there is an exceptional case for PML because that decision resulted in her being issued with a negative notice.16 The written reasons correctly identify the Tribunal’s role on review to make the correct and preferable decision, and properly considers the object of the Act that is to promote and protect the rights, interests and well-being of children in Queensland through a scheme to screen persons who work or wish to work with children to ensure that they are suitable persons to do so.17 The reasons also identify the established principles relevant to determining whether there exists an exceptional case such that the meaning of an ‘exceptional case’ is not defined in the Act and involves an exercise of a broad discretion.18 Relevant to Ground 3 of the appeal and the Department’s findings in relation to concerns around PML’s care of her grandchildren, the Tribunal’s reasons summarise the information provided by the Department referring to incidents in 2010 concerning PML’s treatment of one child in her care as being different than her treatment of the other children. Other concerns identified as physical harm, neglect and sexual abuse are that PML kept drugs in the household and hid them when the Department visited, PML’s partner had sexually assaulted the children, PML’s partner had visited her residence, PML and her partner would get drunk together and this occurred in front of the children, and one of the children was allegedly hurt on the arm by PML’s partner. The relevant extract of the Tribunal’s reasons is set out below as follows: 6 July 2010 - That PML treated one child in her care differently than the other children such that, she pulled the child’s hair and physically disciplined this child. PML kept drugs in the household and hid them when the Department visited. PML’s partner had sexually assaulted children. PML’s partner visited her residence; additional concerns received on 29 July 2010 alleging PML and her partner fought often and the fights involved threatening harm. PML and her partner would get drunk together and this occurred in front of the children. One 14 Ibid. 15 Ibid [27]-[34]. 16 PML v Director-General, Department of Justice and Attorney-General [2019] QCAT 88 2, [1]-[2]. 17 Ibid [3]. 18 Ibid [4]. -- 6 of 19 -- 7 of the children was allegedly hurt on the arm by PML’s partner. The types of harm were physical harm, emotional harm, neglect and sexual abuse. 19 The Tribunal’s reasons set out the Department’s findings that the children in the household had not suffered significant harm of a detrimental nature. However, the children were reported as being at an unacceptable risk of harm due to PML’s responses to the concerns in that she minimised and denied the concerns and offered inconsistent explanations. Further to that, the children had unsupervised contact with PML’s partner and this posed a significant risk to their safety. Additionally, the relationship between PML and her partner was characterised by domestic violence which occurred in front of the children prompting them on one occasion to hide behind a fence in order to remain safe. PML was also reported, together with her partner, to become intoxicated regularly. It was reported that they would fight each other as a result. PML stated that her disciplinary strategy included growling at the children. The outcome was substantiated on the basis of a breach of standards, risk of physical harm caused by neglect and risk of emotional harm. The relevant extract from the reasons is set out below as follows: Child Safety found that the children in the household had not suffered significant harm of a detrimental nature. However, the children were at unacceptable risk of harm due to the following factors: (i) PML minimised and denied the concerns and offered inconsistent explanations; (ii) the children had unsupervised contact with PML’s partner and this posed a significant risk to their safety; (iii) the relationship between PML and her partner was characterised by domestic violence which occurred in front of the children prompting them on at least one occasion to have to hide behind a fence in order to remain safe; (iv) PML and her partner become intoxicated regularly and fought each other as a result; and (v) PML stated her disciplinary strategy included growling at the children. The outcome was substantiated – breach of standards, risk of physical harm caused by neglect and risk of emotional harm. 20 The Tribunal’s reasons identify the Department’s concerns regarding an incident on 26 May 2011 when PML discussed inappropriate topics with the children in her care such as, amongst other things, child protection information pertaining to the children, there was animal urine and faeces in the children’s bedrooms and on their clothes, domestic and family violence occurred in the household in front of the children, the household was overcrowded and PML was not honest with Department staff. On 31 May 2011, additional concerns were raised about PML’s care of the children and the types of harm were identified as physical harm, emotional harm and neglect. The relevant extract from the reasons is as follows: 26 May 2011 - PML had been discussing inappropriate topics with the children in her care such as: 19 Ibid [12]. 20 Ibid. -- 7 of 19 -- 8 (i) child protection information pertaining to the children; (ii) there was animal urine and faeces in the children’s bedrooms and on their clothes; (iii) domestic and family violence occurred in the household in front of the children and was having a negative effect on all family members; (iv) the household was overcrowded; (v) there was strong smell of cannabis throughout the home; (vi) PML had made threats towards her biological child and was highly agitated and verbally aggressive; (vii) PML was not managing one of the children’s behaviour and the child’s behaviour had become violent and threatening; (viii) PML strongly resisted staff from Child Safety entering her residence; and (ix) PML was not honest with staff of Child Safety and service support staff. On 31 May 2011 additional concerns were raised: two of the children were suffering from medical conditions resulting in boils on their body and bleeding in the pubic area, these children had shared beds with the other children in PML’s care. The types of harm were physical harm, emotional harm and neglect. 21 The Tribunal below observed that the Department found evidence indicating that physical harm had occurred to four of the five children in PML’s care due to untreated medical conditions, the five children slept in the one bed increasing risk of cross- infection due to various infections, and PML failed to notice the poor health of the children. All children were removed from PML’s care as a result of the physical harm in addition to neglect, and three of the five children were returned to PML’s care upon the completion of the investigation as it was assessed that those children had a strong bond with her. PML advised that having one less child may allow her to provide a more appropriate level of care. PML agreed to adhering to an action plan with the Department. The relevant extract from the Tribunal’s reasons is set out as follows: Child Safety found evidence indicating that physical harm had occurred to four of the five children in PML’s care due to the following: (a) Each of the four children having untreated medical conditions resulting from neglect such as: severe ear infection, deep itchy and untreated wounds on the toes and groin area, a mass of warts on the shoulder blades, a barking cough, weeping school sores, worm infestations that caused a hard protruding large stomach, blister like formation on one of the children’s testicles and scabies with active mites in the skin; (b) The five children slept in the one bed increasing the risk of cross-infection, PML did not seek medical treatment and failed to take the children to a doctor, when advised of the conditions present on the children, PML sated ‘I will put some cream on it’. (c) PML applied a cream that was not prescribed for them, one of the children was hospitalised for emergency surgery due to having large untreated boils 21 Ibid. -- 8 of 19 -- 9 on his leg that caused a fever due to infection, PML failed to notice the poor health of the children. (d) All children were removed from the care of PML as a result of the physical harm, in addition to the neglect, PML had used ‘rejecting’ communication to two of the children, failed to maintain appropriate and positive relationships with the children’s family, and was unable to address the family violence existing in the household, three of the five children were returned to PML’s care upon the completion of the investigation as it was assessed those children had a strong bond with her. (e) PML advised that having one less child may allow her to provide more appropriate level of care. PML also agreed to participating in and adhering to an action plan to address the concerns. 22 In paragraphs [14] to [49], inclusive of the Tribunal’s reasons, the learned Member summarises PML’s responses to the Department’s concerns and her submissions and her evidence given in the Tribunal proceeding below including a report prepared by a mental health social worker and a letter prepared by the Public Guardian. Comparative cases and DJAG’s submissions are considered in paragraphs [50] to [53], inclusive of the reasons. Relevantly, in paragraph [53], the learned Member refers to DJAG’s submissions and the material provided by the Department in response to the notice to produce. The learned Member states that he is only interested in material that represents substantiated concerns and refers to the rule in Browne v Dunn in relation to putting the material to PML. The learned Member states in the reasons that he will not take any material into account where PML has not been cross- examined about it on the basis that to do so would be to deny PML procedural fairness. In paragraph [53], the learned Member said as follows: The Department’s submissions go into the detail of matters set out in the notice to produce material. While this material was filed on 4 May 2018, the Department did not at any stage outline to PML prior to the hearing which parts of the material it would be seeking to rely upon to give PML an opportunity to respond properly to the material. At the hearing I indicated that I would only be interested in material that represented substantiated concerns and I note that those matters were set out in the summary provided by Child Safety to the Department. I concur with the submissions made on behalf of PML that where the rule in Browne v Dunn has not been satisfied by putting the material to PML, then I will not take that material into account. The further submissions on behalf of PML indicate which material should not be relied upon and I have determined not to rely on that material in the making of this decision. I consider that to do otherwise would be to deny PML procedural fairness. Therefore where she has not been cross-examined on material, it will not be considered by me.23 In paragraphs [54] to [61], inclusive of the Tribunal’s reasons, under the heading ‘risk and protective factors’ the learned Member again summarised PML’s submissions and more importantly, the evidence together with DJAG’s submissions such as, amongst other things, the risk factors render the case an exceptional case such that it would not be in the best interests of children and young people for PML to be issued with a positive notice.24 22 Ibid [13]. 23 Ibid [53]. 24 Ibid [61]. -- 9 of 19 -- 10 The learned Member further summarised DJAG’s submissions and PML’s evidence that she has taken steps necessary to deal with the drug and domestic violence issues which had and would put children in her care at risk.25 The learned Member was ultimately satisfied that on the balance of probabilities, the protective factors in respect of PML outweigh the risk factors, and that the decision of the Department that PML’s case is exceptional within the meaning of s 221(2) of the Act is set aside and there is no exceptional case in respect of PML. Although the learned Member correctly identifies the Tribunal’s role in the review proceeding and summaries DJAG’s and PML’s submissions and the relevant issues, it is clear on a fair reading of the Tribunal’s reasons that undue weight was placed by the learned Member on the Department’s decision to return the children to PML. As discussed above, the learned Member at paragraph [51] of the reasons refers to the oral hearing at first instance and says that he indicated in the hearing that he would only be interested in material that represented substantiated concerns and amongst other things, where PML has not been cross-examined on material, it will not be considered by him.26 We accept DJAG’s submissions made in support of Ground 3 of the appeal that it is clear from the transcript of the proceeding below that from the outset of the hearing the learned Member placed significant weight on the Department’s decision to return the children to PML’s care.27 The transcript shows that the learned Member told DJAG’s representative at the commencement of the hearing below that the Department has intimate knowledge of PML and her children and they have not taken any steps before DJAG did to remove those children. At the oral hearing before the Tribunal below, the learned Member told the DJAG representative that at the time PML’s blue card was removed she was still a kinship carer for her grandchildren and referred to the purpose of the Department and DJAG in the context of their respective legislative schemes as being the same because the paramount purpose is to ensure the safety of children. The relevant extract from the transcript is set out below: MEMBER: So, Ms Borger, I’ll tell you straight off that the Child Protection Agency has intimate knowledge of [PML] and of the children. They have not taken any steps before Blue Card did to remove those children. If they were concerned, then – under section 5A of the Child Protection Act – their paramount – I’ll get it – their paramount purpose is to ensure the safety of children. Okay? So I understand that Blue Card has received this material and has come to its own conclusion based on what I would call a desk audit. Okay? So you’re going to need to work really hard to convince me that the child protection people who were actually on the ground, knew the circumstances and seemed to be happy for [PML] to have care of these children were wrong. Because that’s basically what you’re saying, isn’t it? She shouldn’t be able to care for the children that she’s the kinship carer of. That’s the decision, ultimately, that Blue Card has made by issuing her with a negative notice. MS BORGER: I think it’s broader than that, Member, in that a Blue --- MEMBER: Well, that’s the direct result of your decision, isn’t it? UNIDENTIFIED SPEAKER: Sorry. 25 Ibid [62]-[71]. 26 Ibid 16 [51]. 27 Appellant’s outline of argument filed 4 July 2019, [27]. -- 10 of 19 -- 11 MS BORGER: Well that’s correct. And that’s because there’s that link between kinship carers needing a Blue Card. But the position of the respondent is that this is a broader argument and a broader position. I mean, that was an unfortunate consequence of the removal of the Blue Card for [PML], that those children were removed because of the child protection legislation. But, certainly, I’m not seeing that as the sole --- MEMBER: Sorry. My point is there are two agencies that have a say about whether or not [PML] has the right to be involved with children, the Blue Card Agency and the Child Protection Agency. Your agency operates purely on paperwork. The Child Protection Agency has an intimate relationship with the children and has direct knowledge of [PML’s] care of those children. Okay? Now, the children were removed previously. There were was substantiated harm. But, at the time her Blue Card was removed, she was still an approved kinship carer for those children. Is that right? MS BORGER: That’s correct. MEMBER: So the Child Protection Agency thought that she was a safe person to have with those children. MS BORGER: It seems so. Yes. MEMBER: Well, it’s not, “It seems so”. Isn’t it the case? MS BORGER: Well, they kept the children there with [PML]. Yes, that’s right. MEMBER: And their purpose is the same as your purpose, isn’t it? The paramount purpose is to ensure the safety of children. Is that right? MS BORGER: Yes, Member, to a degree. 28 After the hearing started, the learned Member responded to DJAG’s submissions and the Department’s material obtained through a notice to produce in the context of the decision that DJAG wants the Tribunal to make on review as being to draw a different conclusion to the Department and to remove the children from PML’s care.29 The relevant extract from the transcript is as follows: MEMBER: So what you’re going to be asking me to be doing is going through that material and drawing a different conclusion to what Child Protection was prepared to do; is that right? MS BORGER: That’s right. So through almost the lenses of the Working with Children Act and the Blue Card process. That’s right, Member. MEMBER: So that’s right. So you’re telling me that your department is taking me through another department’s material, a material where the paramount concern is the safety of children again and I’m going to come to a different conclusion to them. That’s what you’re wanting me to do. 30 And later: MEMBER: You’ve never met those children. None of the operatives in your department have met those children. You don’t know what care’s been 28 Transcript of Proceedings, PML v Director-General, Department of Justice and Attorney General, 1- 8 lines 44-47; Transcript of Proceedings, PML v Director-General, Department of Justice and Attorney General, 1-9 lines 1-47. See Appeal Book, 51-52. 29 Appellant’s outline of argument filed 4 July 2019, [28]-[29]. 30 Transcript of Proceedings, PML v Director-General, Department of Justice and Attorney General, 1- 21 lines 31-41. See Appeal Book, 64. -- 11 of 19 -- 12 provided. You don’t know what their outcomes are. But the decision you’re asking me to confirm that you made, remove those children from her care that’s ultimately what this is about, isn’t it? 31 Later in the oral hearing below, the learned Member refers to the Department’s material and observes that the children were still with PML at the relevant time the material produced by the Department was obtained. The learned Member observes that the Department has a stronger purpose in protecting children. The relevant extract from the transcript is set out below as follows: MEMBER: Well – and I won’t say it again, but my issue is for whatever material you’ve got from Child Protection, the children were still with her. So Child Protection, who has as strong, or stronger, a purpose in protecting children as you do allowed that approval to continue with what – with whatever I’m going to find in these reports. MS BORGER: I can see what you’re saying, Member, but it’s still the respondent’s position that this is not about the protection of those three children per say in the foster care arrangement. This is about employment screening and a blue card, which is – unfortunately, can’t just be tailored to the foster care of those three children. 32 And further: MEMBER: …but I don’t want to be put in a position where I’m supposed to be second guessing the Child Protection Agency. Okay? 33 We accept DJAG’s submission that in adopting the position with respect to the Department’s decision to return the children to PML’s care, the learned Member failed to appreciate that the test applied by the Department under the Child Protection Act 1999 (Qld) with respect to any children in PML’s care within a family environment is for a different purpose to the test to be applied by DJAG and the Tribunal on review for the screening of persons employed in particular employment or carrying on particular businesses under the Act.34 We do not accept, as contended by PML in responding to Ground 3 of the appeal, that it is unsurprising that the learned Member pursued many lines of questioning towards DJAG’s representative when DJAG’s case attempted to utilise the notice to produce material against PML.35 This was, as submitted by PML, despite the fact that the source of the material (i.e. the Department) was in support of PML’s engagement with children.36 We consider that the task required of the Tribunal on review was to consider the matter afresh to determine whether there exists an exceptional case. This required the Tribunal below to consider all of the material that was before the Chief Executive (DJAG) when it made its decision, any relevant material including the material obtained from the Department through the notice to produce and any material 31 Transcript of Proceedings, PML v Director-General, Department of Justice and Attorney General, 1- 22 lines 22-26. See Appeal Book, 65. 32 Transcript of Proceedings, PML v Director-General, Department of Justice and Attorney General, 1- 23 lines 1-10. See Appeal Book, 66. 33 Transcript of Proceedings, PML v Director-General, Department of Justice and Attorney General, 1- 117 lines 24-25. See Appeal Book, 160. 34 Appellant’s outline of argument filed 4 July 2019, [34]. 35 Respondent’s submissions in response filed 1 August 2019, [16]. 36 Ibid. -- 12 of 19 -- 13 provided by PML. The Tribunal below was also required to consider the relevant matters prescribed under s 226(2) of the Act in the context of the objects and purpose of the Act. In the present matter, the learned Member has misdirected himself as to the task required, that is, to exercise a broad discretion in determining whether there exists an exceptional case. We do not consider, however, as submitted by DJAG, that the learned Member has misdirected himself that conclusive evidence was required of the allegations contained in the material from the Department. As discussed above, the learned Member has expressed a willingness in referring to the Department’s decision to return the children to PML’s care to only consider the Department’s substantiated findings. The transcript shows that the learned Member has on a number of occasions throughout the hearing below remained focused on the Department’s substantiated findings, and observed the effect of a decision on review to issue a negative notice to PML is to remove the children from PML’s care.37 We do agree, however, with DJAG’s submission that the approach that the learned Member ought to have taken was to apply an independent mind and deliberation to the concerns raised, irrespective of the Department’s findings that the concerns about PML’s care of the children were substantiated or otherwise. In this matter the learned Member was required to exercise a broad discretion in determining whether there exists an ‘exceptional case’. The learned Member has fallen into error by confining himself to only consider evidence relevant to the Department’s substantiated findings in relation to PML’s care of her grandchildren. Ground 3 of the appeal is allowed. Ground 4 – failure to take into account relevant material In addressing Ground 4 of the appeal, DJAG submits that the learned Member erred in refusing to take into account material obtained from the Department through the notice to produce. In doing so, DJAG submits that the learned Member failed to take into consideration relevant matters contained in that material.38 DJAG refer us to paragraph [53] of the Tribunal’s reasons and the learned Member’s observations and ruling with respect to the notice to produce material from the Department. As set out above, at paragraph [53] of the Tribunal’s reasons, the learned Member states that he is only interested in material that represented substantial concerns and refers to the rule in Browne v Dunn39 as not being satisfied unless relevant material is put to PML. The rule in Browne v Dunn requires a party and indeed the Tribunal in exercising its review jurisdiction to ensure that a witness is given an opportunity to respond to any assertions made. In Smart State Vehicle Rental Pty Ltd v Tri Asset Protection Systems Pty Ltd,40 the President of the Tribunal summarised the rule in Browne v Dunn as ‘if one party is going to assert a different version of events from the other, witnesses for 37 Appellant’s outline of argument filed 4 July 2019, [35]. 38 Ibid [37]. 39 (1893) 6 R 67. 40 [2013] QCATA 16. -- 13 of 19 -- 14 the opposing party who are in a position to comment on that version should be given, by the crossexaminer, the opportunity to do so’.41 Although, as prescribed under s 28(3)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) the Tribunal is not bound by the rules of evidence other than to the extent that the Tribunal adopts the rules, the Tribunal is required to observe the rules of nature justice.42 Further to that, and amongst other things, the Tribunal is required to ensure, so far as is practicable, that all relevant material is disclosed to the Tribunal to enable it to decide the proceeding with all the relevant facts.43 In this matter, it is apparent from a fair reading of paragraph [53] of the Tribunal’s reasons that all of the notice to produce material was not considered by the learned Member in the proceeding below. Further to that, the learned Member in conducting the proceeding below indicated to DJAG’s legal representative that he would not consider all of the notice to produce material on the basis that if the Department has investigated something and found no harm substantiated then that is the end of the matter. The relevant extracts from the transcript of the proceeding below are now set out as follows: MEMBER: If they’ve investigated something and they’ve said there’s no harm substantiated, as far as I’m concerned that’s the end of the matter, isn’t it? MS BORGER: Okay. Okay. Well, maybe I’ll just ask [PML] --- MEMBER: No, but do you think that I should take a different approach? So if they’ve said there’s no harm, then clearly that’s on the basis either that the allegation wasn’t true or there has been no harm. And part of there being no harm would be that PML has taken whatever steps necessary so that there was no harm. Okay? Is that right? MS BORGER: Yes. Well, I mean, I guess, Member, it depends on what you see as harm, in that after this incident – and I can take you to the reference – this young man was displaying behaviours of concern. Now, the department decided that that wasn’t sufficient and left this as it was. I mean, I can certainly not go to these incidents. MEMBER: Well, like, I’m just trying to understand what we’re trying to do. So if you’re asking [PML] to demonstrate what positive factors that she had – what – how she minimised risk, etcetera where there’s no substantiated harm, I can understand that. But how am I going to draw a conclusion different to the one that the department’s done where they’ve investigated it? 44 The transcript of the hearing below shows that when the DJAG representative referred to the notice to produce material and the Department’s concerns in the context of addressing whether PML has demonstrated insight into the past harms that have been caused by the children, the learned Member indicated that he did not want to be put in a position where he is second guessing the Department. The relevant extract from the transcript is as follows: MS BORGER: Well, I’m trying to get an understand – I mean, [PML] has these children in her care and I’m trying to extrapolate the protective factors that – 41 Smart State Vehicle Rental Pty Ltd v Tri Asset Protection Systems Pty Ltd [2013] QCATA 16, [13]. 42 See Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28. 43 Ibid. 44 Transcript of Proceedings, PML v Director-General, Department of Justice and Attorney General, 1- 116 lines 16-37. See Appeal Book, 159. -- 14 of 19 -- 15 protective stances that she has taken to look after and look after the best interests and welfare of these children. And [PML] doesn’t seem to demonstrate, really, much insight into the past harms that have been caused by these children. And it appears that even though that there are not substantiated incidents in this material, there are still elements in this material that indicate these children are being exposed to questionable behaviour and incidents of domestic violence. So I could go through and point those out, or maybe I’ll just ask [PML] general questions about her protective strategies that are in place. Certainly there’s material in here that speaks very well about how the three children are doing at school and the extra-curricular activities. I can focus on those. But, again, this isn’t a question of how well she [indistinct] care. It has to be extrapolated out. MEMBER: What are we looking at, risk factors and positive factors, aren’t we? MS BORGER: Yes. So I’ll ask her what positive factors --- MEMBER: No. No. But, like, if you’re going to specific parts of the material, then we can do it on the basis of identifying what risk factors there are and what positive factors there are, but I don’t want to be put in a position where I’m supposed to be second guessing the Child Protection Agency. Okay? 45 We agree with DJAG’s submission that the learned Member has failed to take into account relevant material obtained from the Department through the notice to produce. The notice to produce material is relevant because it concerns PML’s role as kinship carer for her grandchildren. The notice to produce material is clearly relevant to the review proceeding and PML’s suitability to hold a blue card or positive notice, and refers to, amongst other things, a longstanding family history with the Department dating back to the 1990s and a ‘well documented’ level of violence in the family, including adult family members being ‘both perpetrators and victims of domestic violence’.46 In 2007, incidents of violence recorded between PML and another person were commonplace and this resulted in fighting and property damage with children present.47 There are also documented concerns around PML’s mental health and ability to manage anger. In 2017, PML was observed by a carer to be screaming around the children and the carer expressed concerns with respect to PML’s safety whilst in the presence of the respondent.48 There are also concerns noted in May 2017 that PML repeatedly permitted her ex-partner who has an extensive criminal history in relation to domestic violence, sodomy, assaults on women and sexual assault on children, to come to her home whilst the children were present.49 We accept DJAG’s submission that the notice to produce material contains references to issues or concerns that should be considered by the Tribunal on review in the exercise of the broad discretion to determine whether there exists an exceptional case. A failure to take into account some material consideration is an error of law. Ground 4 of the appeal is allowed. 45 Transcript of Proceedings, PML v Director-General, Department of Justice and Attorney General, 1- 117 lines 4-25. See Appeal Book, 160. 46 See Appellant’s outline of argument, [39]; Appeal Book, 226-228. 47 Ibid; Appeal Book, 331. 48 Ibid; Appeal Book, 1124. 49 Ibid; Appeal Book, 1483-1495. -- 15 of 19 -- 16 Ground 1 – Error in the Tribunal’s Exercise of Discretion DJAG agrees with PML’s written submissions in response to the grounds of appeal that Ground 1 of the appeal is broadly stated and intertwines with the six other grounds of appeal.50 DJAG has failed to raise any further contention in support of Ground 1 that has not already been addressed in Grounds 3 and 4 of the appeal. Ground 1 is without merit. Ground 2 – Mandatory Considerations under s 226(2) of the Act It is noncontentious that s 226(2)(b) to (d), inclusive of the mandatory considerations under the Act do not apply to the circumstances of this case.51 DJAG says however that s 226(e) of the Act is relevant because PML was convicted in 2012 for the offences of possessing dangerous drugs and utensils or pipes. DJAG submits that PML’s daughter was present at the time police searched PML’s home and found a small quantity of cannabis.52 DJAG submits that material obtained by way of a notice to produce indicates that PML might also be involved in the supply of cannabis and that the concerns despite being identified by DJAG in written submissions placed before the Tribunal below, were not considered by the learned Member. DJAG submits that PML’s potential involvement in the supply of cannabis was a matter relevant to the Chief Executive’s assessment of her and ought to have factored into the decision of the learned Member pursuant to s 226(2)(e) of the Act.53 The Tribunal’s reasons show that the learned Member turned his mind to the subject of PML’s criminal history and drug charges in paragraphs [63] and [65] of the learned Member’s reasons. The learned Member was satisfied that PML following the conviction underwent counselling and stopped using drugs and no longer tolerates them on her premises.54 We do not consider that DJAG has identified any error in the Tribunal’s consideration of the notice to produce material relevant to PML’s drug use. The transcript of the proceeding below shows that DJAG’s legal representative cross-examined PML about her drug use and previous convictions. It is apparent from the transcript that DJAG’s legal representative did not however ask PML any specific questions about the notice to produce material that may demonstrate concerns about PML being involved in the supply of drugs.55 DJAG has failed to identify any error in the learned Member’s consideration of the mandatory matters set out under s 226 of the Act. It is not contended by DJAG in addressing Ground 2 of the appeal that the DJAG legal representative was prevented from asking PML questions about her criminal history in the proceeding below. The DJAG representative had an opportunity to specifically put any concerns to PML 50 Appellant’s written submissions in reply filed 29 August 2019, [2]-[3]; Respondent’s submissions in response filed 1 August 2019. 51 See Appellant’s written submissions in reply filed 29 August 2019; Respondent’s submissions in response filed 1 August 2019. 52 Ibid. 53 Ibid. 54 PML v Director-General, Department of Justice and Attorney-General [2019] QCAT 88, 21 [65]. 55 See Appeal Book, 154. -- 16 of 19 -- 17 about her drug use. The Tribunal’s reasons summarise the issues relevant to PML’s drug history. Ground 2 is without merit. Ground 5 – Consideration of the Department’s Material In the oral hearing before the Appeal Tribunal, DJAG submitted that Ground 5 of the appeal is similar in nature to Ground 3 in that it concerns the learned Member’s unwillingness in conducting the hearing below to take into account any allegation of harm that is not substantiated by the Department.56 DJAG has failed to raise any new contentions that have not already been addressed in Ground 3. Ground 5 is without merit. Ground 6 – Protective Nature of the Act We do not consider that the learned Member has, as contended by DJAG, failed to properly consider the purpose and objects of the Act taking into account mandatory statutory criteria.57 As discussed above, the Tribunal’s reasons show that the learned Member correctly identified the purpose of the Act and the task required that involved an exercise of a broad discretion in determining whether there exists an ‘exceptional case’. Ground 6 is without merit. Ground 7 – Consideration of Evidence Relevant to Working in Regulated Employment DJAG submits that little weight can be placed on the evidence of Mr Fraser, mental health social worker, given in the hearing below in circumstances where he is unwilling to express an opinion with respect to the respondent’s risk in the community, this being the entire purpose of the proceeding below.58 It is clear from the Tribunal’s reasons that the learned Member carefully considered the evidence of Mr Fraser relevant to the extent to which he considered PML has insight into her offending behaviours and its impact on society, the victims and any children associated with PML.59 The learned Member considered Mr Fraser’s evidence relevant to PML using her blue card more broadly, if she were to offer her carer services to the general community.60 Mr Fraser’s evidence, as summarised in the Tribunal’s reasons, about working outside the community is that PML would need to be committed, that she had the capacity to not be a risk to children, and that would be a question to be considered at the relevant time.61 Although not expressly stated, the learned Member has accepted Mr Fraser’s evidence in finding that PML has the support of many people as evidenced by the material filed on her behalf, she has attended courses and counselling, and the change in her attitude and capability is supported by Mr Fraser. In paragraph [67] of the Tribunal’s reasons, the learned Member found as follows: The evidence shows that, since 2012, PML has taken the steps necessary to deal with the drug and domestic violence issues which had and would put children 56 See Appellant’s written submissions in reply filed 29 August 2019. 57 Ibid. 58 Ibid. 59 PML v Director-General, Department of Justice and Attorney-General [2019] QCAT 88, 12 [38]. 60 Ibid [43]. 61 Ibid. -- 17 of 19 -- 18 in her care at risk. That is not to say that the possibility of a domestic violence situation arising has been abated, but I am satisfied that she has appropriate strategies measures to deal with them in place. She has the support of many people as evidenced by the material that was filed on her behalf and she has attended relevant courses to and counselling to equip her to deal with the issues as evidenced by the courses she has attended and the change in her attitude and capability is supported by Mr Russ Fraser.62 DJAG has failed to identify any error in support of Ground 7 and the Tribunal’s findings about PML’s evidence that the learned Member found was supported by Mr Fraser. Ground 7 is without merit. Application for Leave to Include a Further Ground of Appeal DJAG seeks leave to amend the application for leave to appeal or appeal to include a further ground of appeal now set out below: The learned Member denies the appellant procedural fairness by erroneously restricting the appellant from cross examining the respondent about child safety concerns contained within notice to produce material. 63 In short, DJAG submits that relevant extracts of the transcript of the proceeding below are indicative of an extraordinary and unwarranted level of intervention and restriction of DJAG’s cross-examination by the learned Member. Further to that, DJAG submits that it is plain from the exchange that the learned Member is unwilling to entertain cross-examination on matters investigated by the Department that did not amount to ‘substantiated concerns’.64 We consider that the written submissions in support of DJAG’s application for leave to include a further ground of appeal do not raise any new contention that has not already been addressed in respect of Grounds 3 and 4 of the appeal. Indeed, the relevant portions of the transcript that DJAG refer to in support of its submissions for the proposed new ground of appeal are the same portions of transcript that DJAG refer us to in support of its contentions for Grounds 3 and 4 of the appeal. The application for leave to include a further ground of appeal is refused. Application for Leave to Adduce Fresh Evidence The question of whether leave to adduce fresh or new evidence should be granted will involve the exercise of a broad discretion having regard to established principles as identified in Ellis & Anor v Queensland Building Services Authority: New evidence will ordinarily only be allowed if: it could not have been obtained with reasonable diligence at the time of trial; had the evidence been given, it would have had an important influence on the result (although it need not be decisive); and, the evidence is apparently credible, although not necessarily incontrovertible. 65 Here, the appeal proceeding is decided upon questions of law and mixed fact and law. As discussed above, we consider that Grounds 1, 2, 5, 6 and 7 that raise questions of 62 Ibid [67]. 63 Application for miscellaneous matters filed 16 April 2020; Appellant’s written submissions filed 16 April 2020. 64 Ibid. 65 [2010] QCATA 93, 3 [7]. See also Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, 408. -- 18 of 19 -- 19 mixed fact and law are without merit. We have however allowed the appeal on Grounds 3 and 4. In the application for leave to rely upon fresh evidence, DJAG seek to rely on a number of documents which were not before the Tribunal below including letters and emails exchanged between DJAG and PML’s legal representative during the period from 23 May 2018 to 29 August 2018, inclusive. DJAG submit that the letters and emails disprove PML’s assertion that PML did not have the opportunity to issue an affidavit or statement in reply to the issues raised in the notice to produce material prior to the hearing.66 DJAG submit that had the Tribunal below considered the documents in the hearing below, the learned Member may well have reached a different conclusion with respect to the applicability of the rule in Browne v Dunn and the admissibility of the notice to produce material. DJAG has failed to convince us that leave to rely on fresh evidence in the appeal proceeding should be given. The fresh evidence sought to be adduced includes documents that predate the decision of the Tribunal below. DJAG has failed to provide a satisfactory explanation as to why the material was not available at the time of the hearing. Indeed, as required by s 21(2) of the QCAT Act, DJAG, as the decision- maker, is required to provide to the Tribunal on review and the applicant in the review proceeding, any document or thing in its possession or control that may be relevant to the Tribunal’s review of the decision. Further, for reasons discussed below in the disposition of the appeal, it matters not that the documents were not before the learned Member below. DJAG and PML will, in the reconsideration of the application for review, be given an opportunity to present any further material and evidence that is relevant to PML’s suitability to hold a blue card or positive notice. Leave to rely upon fresh evidence is refused. Disposition of the Appeal There is an error in the learned Member’s exercise of discretion in determining whether there exists an ‘exceptional case’. In allowing Ground 3 of the appeal, we found that the learned Member has fallen into error by confining himself to only consider evidence relevant to the Department’s substantiated findings in relation to PML’s care of her grandchildren. In allowing Ground 4 of the appeal, we found that learned Member failed to consider relevant material from the Department that identified issues or concerns about PML’s care of her grandchildren. More importantly, PML during cross-examination, was not questioned about the issues or concerns identified in the notice to produce material from the Department. It is appropriate in this matter and in proceeding under s 146(c) of the QCAT Act to set aside the Tribunal’s decision of 5 April 2019 and return the matter to a differently constituted Tribunal for reconsideration. We order accordingly. In reconsidering the matter, DJAG and PML should be given an opportunity to file in the Tribunal any further material upon which they seek to rely at the hearing. We make directions accordingly. 66 Appellant’s written submissions in support of application to rely on fresh evidence dated 11 October 2019 in particular at [8]. -- 19 of 19 --