Dent v Chief Executive Department of Education and Training [2017] QCAT 437

CITATION: Dent v Chief Executive Department of Education and Training [2017] QCAT 437 PARTIES: Dee (Daphne) Dent (Applicant) v Chief Executive, Department of Education and Training (Respondent) APPLICATION NUMBER: GAR225-17 MATTER TYPE: General administrative review matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Holzberger DELIVERED ON: 1 December 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. The application to extend time is refused. 2. The application for review is dismissed. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS – application to extend time PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – where decision to prohibit person entering school lapsed – review limited to prohibition – where Tribunal order would have no practical effect – the interests of justice Education (General Provisions) Act 2006 (Qld), s 337, s 339, s 340, s 340A, s 341, s 390, s 391, s 392, s 393, s 394 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47(1)(b), s 47(2)(a), s 61(1)(a) -- 1 of 4 -- 2 Cavalier Homes Brisbane Pty Ltd v Queensland Builder Services Authority [2012] QCAT 6 Hunter Valley Developments Pty Ltd v The Hon Barry Cohen, Minister for Home Affairs [1984] 3 FCR 344 Mills v Department of Education and Training [2017] QCAT 123 This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION Ms Dent has applied for an extension of time for filing an application to review a decision of the Chief Executive of the Department of Education and Training to prohibit him from entering school premises.1 On 10 March 2017, the Principal of Conondale State School issued a direction to Ms Dent prohibiting her from entering the Conondale State School for a period of 60 days. On 12 April 2017, the applicant applied to the Chief Executive for an internal review of that decision. On 6 June 2017, the Chief Executive confirmed the decision. On 28 July 2017, the applicant applied to the Tribunal for review of that decision. The application was originally allocated to the children’s matters list. On 9 August 2017, the Tribunal directed that this application be made and that the matter be transferred to the review list. In support of the application, the applicant relies on the matters contained in the application itself. The Chief Executive filed submissions on 6 September 2017. The factors to be considered in extension of time applications are: a) Whether there is an acceptable explanation for the delays; b) The length of the delays; c) Whether the delay prejudices another party; d) The merit of the substantive application; and 1 Education (General Provisions) Act 2006 (Qld), s 340, s 340A. -- 2 of 4 -- 3 e) Whether it is fair and reasonable and in the interest of justice to grant the extension in all the circumstances.2 By way of explanation for the delay, Ms Dent says that: a) The application was made within time and that it is the transfer of the matter from the children’s matters list to the review list, which is out of time; b) The matter is complicated and Ms Dent is not legally represented; and c) Ms Dent is in a remote location resulting in communication delays. The applicant is incorrect in respect of the first of those explanations. The transfer to the review list has no effect on the filing date. Accepting, for the moment, that the decision under review was not received by Ms Dent until 16 June 2017, the application was filed some 2 weeks out of time. Given the relatively short period of the delay and the fact that the Chief Executive does not say prejudice has been suffered, the explanation offered by Ms Dent would usually be acceptable. The Chief Executive’s submissions began as follows: 1. The respondent applies for the review applications (the applications) to be dismissed by the Tribunal by: (i) Not extending time pursuant to section 61(1)(a) of the QCAT Act to commence the applications; or (ii) Finding the applications “lack substance” pursuant to ss 47(1)(b) and 47(2)(a) of the QCAT Act.3 I am not prepared to consider an application to summarily dismiss under section 47, which has been made in the course of submissions in respect of an application to extend time. The substance or lack of it, of the substantial application and its ultimate prospects of success are however relevant to whether it is in the interest of justice to support an extension of time. The Chief Executive’s submissions refer me to the case of Mills v Department of Education and Training,4 where in circumstances virtually identical to these, the Tribunal struck out a review application as lacking substance. 2 Hunter Valley Developments Pty Ltd v The Hon Barry Cohen, Minister for Home Affairs [1984] 3 FCR 344; Cavalier Homes Brisbane Pty Ltd v Queensland Builder Services Authority [2012] QCAT 6. 3 Chief Executive’s submissions, filed 6 September 2017, paragraph 1. 4 [2017] QCAT 123. -- 3 of 4 -- 4 The Chief Executive’s submissions spend considerable time setting out its view of the background of this matter and the application to extend time suggest all manner of corruption misconduct and fraud, but these matters are not within the Tribunal’s review jurisdiction. All the Tribunal can do is confirm or amend the decision to impose the prohibition, set it aside and substitute its own decision or set it aside and return it to the original decision maker. The prohibition imposed on the applicant here, as it was in Mills, had expired before the application for review was even made. Ms Dent has been free to enter the school for a lawful purpose since its expiry. Even if the Tribunal extends the time for the filing of the review application and ultimately overturns the decision it makes no difference to the existing rights of Ms Dent or the Chief Executive. There is no utility in hearing the application. No doubt if time was extended, having regard to the decision in Mills, the Chief Executive would file a formal application to have the matter dismissed. In those circumstances it is neither fair nor reasonable in the interest of justice to extend time for filing the application. I order: 1. The application to extend time is refused. 2. The application for review is dismissed. -- 4 of 4 --