CH v Chief Executive Officer Public Safety Business Agency [2014] QCAT 376

CITATION: CH v Chief Executive Officer Public Safety Business Agency [2014] QCAT 376 PARTIES: CH (Applicant) v Chief Executive Officer, Public Safety Business Agency (Respondent) APPLICATION NUMBER: REO005-14 MATTER TYPE: Childrens matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Endicott DELIVERED ON: 22 July 2014 DELIVERED AT: Brisbane ORDERS MADE: The application for an extension of time to commence a re-opening application is dismissed. CATCHWORDS: EXTENSION OF TIME – where application to re-open made more than 28 days after decision sent to applicant – where explanation for delay was based on issues of convenience for applicant – where merits of re-opening not high – where no substantial injustice should proceeding not be re-opened Queensland Civil and Administrative Tribunal Act 2009 ss 61, 137 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] CH unsuccessfully applied in 2013 for a review of a decision made by the former Commissioner for Children and Young People and Child Guardian, -- 1 of 4 -- 2 now the Chief Executive Officer of the Public Safety Business Agency, to issue him with a negative notice preventing him from working with children. The tribunal determined, after a full hearing in which CH participated, that the decision to issue a negative notice was confirmed. Reasons for that decision were published by the tribunal in November 2013 and sent to CH within days of publication. [2] On 18 February 2014 CH applied to re-open that proceeding. His application was out of time as he had 28 days after receiving the decision in which to file a re-opening application. He was more than two months out of time to file that application. The application is not valid unless an extension of time is granted by the tribunal to allow the re- opening application to proceed despite being lodged out of time. [3] He applied for an extension of time on 28 March 2014. In support of the application for an extension of time, CH submitted that he had not filed the re-opening application within 28 days because his wife was not around as she had travelled to Africa. He stated that he needed his wife available this time at the hearing to be able to defend him. [4] The inference able to be drawn from this explanation given by CH is that he deliberately delayed taking steps to re-open the proceeding until he considered he was in the best position to do so. He did not state that he was unaware of any relevant time periods but it was simply not convenient for him to file his application within 28 days. [5] While the tribunal has the power to grant extensions of time under s 61 of the QCAT Act, there are well established factors that are taken into consideration before extensions of time are granted.1 These factors include whether there is an acceptable explanation for the delay, length of time of that delay, whether there is prejudice to other parties, the strength of the applicant’s case and whether it is in the interests of justice to grant the extension. [6] The period of the delay is relatively short however the delay must be considered in the context that the applicant had already participated in a hearing of the blue card review and had received a decision supported by written reasons. The review proceeding had commenced in June 2013, a hearing conducted three months later and a decision handed down less than two months after the hearing. CH then waited more than three months to seek to re-open the proceeding. Given the expedition that had already been taken to deal with the review application, that three month period was a significantly long delay in the context of this particular matter. [7] However the main problem with this extension of time application arises from a consideration of the strength of the applicant’s case for a re- opening. CH submits that the tribunal got the decision wrong. 1 Hunter Valley Developments Pty Ltd v The Honourable Barry Cohen, Minister for Home Affairs (1984) 3 FLR 344, Cavalier Homes Brisbane Pty Ltd v Queensland Building Services Authority [2012] QCAT 6, Crime and Misconduct Commission v Chapman and Anor [2011] QCAT 229. -- 2 of 4 -- 3 He submitted that the cause of his stress is no longer present as his wife’s siblings are leaving Australia and that he had made a mistake to refer to his ex-wife when he and his wife form a family unit with a very young child. [8] A re-opening ground depends on the tribunal being satisfied that CH would suffer a substantial injustice if the proceeding were not to be re- opened. Section 137 of the QCAT Act describes a ground for re-opening as occurring when significant new evidence has arisen and that evidence was not reasonably available when the proceeding was first heard and decided. [9] The submission by CH that he is not separated from his wife does not constitute new evidence. He gave that evidence at the hearing. Although the tribunal found that the evidence on the issue of whether CH and his wife were in an intact relationship was inconsistent, the tribunal expressly did not draw any adverse inference about the references in the evidence to CH’s ex-wife. In fact the tribunal accepted that there had been a reconciliation between CH and his wife. [10] I have also come to the conclusion that the evidence that his wife’s family will not now be living in Australia would not be enough to support a re- opening of this proceeding. The tribunal had been concerned about the stress that the arrival of his wife’s family may have on CH but that was not the sole basis for the finding that the negative notice should be upheld. The tribunal identified several factors that gave rise to an exceptional case to refuse the blue card in addition to the stress that these additions to the family may bring. Those other factors included the serious nature of CH’s offending behaviour, the physical and verbal acts of violence in the presence of young children, the limited time since CH had resumed his relationship with his wife as well as a lack of insight by CH into his offending behaviour. [11] The tribunal did not accept the version given by CH of how the events unfolded that had resulted in his offending behaviour where his version differed from the version on which he had pleaded guilty to the charges. In addition the tribunal noted that CH could not express how his behaviour might had emotionally impacted on his wife and was not satisfied that there was no longer a risk of re-offending by CH. [12] The tribunal was satisfied that on the whole of the evidence it would not be in the best interests of children to issue a positive notice to CH. The mere fact that one of the issues underlying that decision may not have eventuated does not compel me to find that a substantial injustice would occur if the proceeding were not to be re-opened. The other factors identified by the tribunal which supported the issuing of a negative notice are unchanged. [13] As I have concluded that the merits of the re-opening case are low, I am not satisfied that an extension of time is warranted to avoid any injustice being sustained by CH if the proceeding were not to be re-opened. -- 3 of 4 -- 4 His application for an extension of time is dismissed resulting in the blue card review not being re-opened. -- 4 of 4 --