Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303

CITATION: Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303 PARTIES: Commissioner for Children and Young People and Child Guardian (Appellant) v Christopher Patrick Eales (Respondent) APPLICATION NUMBER: APL024-13 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: C Endicott, Senior Member J Browne, Member DELIVERED ON: 8 October 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Extension of time is granted. 2. Appeal on ground one is refused. 3. Appeal on ground two is dismissed. CATCHWORDS: APPEAL – CHILDRENS MATTERS – BLUE CARD – „EXCEPTIONAL CASE‟ – where the Commissioner issued a negative notice – where respondent sought a review of the Commissioner‟s decision – where the Tribunal found that no exceptional case exists and set aside the Commissioner‟s decision and directed that a positive notice issue – where the Commissioner appealed on a question of law – where the Commissioner on appeal seeks relief by way of amendment of the Tribunal‟s decision – whether grounds for appeal APPEAL – CHILDRENS MATTERS – BLUE CARD – INADEQUATE REASONS – where the Commissioner issued a negative notice – where respondent sought a review of the Commissioner‟s decision – where the Tribunal found that no exceptional case exists and set -- 1 of 11 -- 2 aside the Commissioner‟s decision and directed that a positive notice issue – where the Commissioner seeks to appeal the decision of the Tribunal on the grounds that it has made contrary statements in its decision – whether grounds for appeal APPEAL – CHILDRENS MATTERS – BLUE CARD – EXTENSION OF TIME – where the Commissioner seeks an extension of time to file its appeal due to an error in the calculation of time to appeal – whether grounds to extend time Commission for Children and Young People and Child Guardian Act 2000, ss 5, 155, 220, 221, 226 Queensland Civil and Administrative Tribunal Act 2009, ss 17, 20, 61, 66, 135, 142, 143 Ash Industries Pty Ltd v Plumb [2010] QCATA 53, cited Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, cited Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492, cited Eales v Commissioner for Children and Young People and Child Guardian [2012] (Unreported, Queensland Civil and Administrative Tribunal, Member Johnstone, 10 December 2012), cited Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) FCR 344, cited McClintock v Queensland Building Sevrices Authority [2010] QCATA 68, cited Racing Queensland Limited v Dixon [2013] QCATA 172, cited Ricchetti v Lanbuilt Pty Ltd [2011] QCATA 266, cited 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). -- 2 of 11 -- 3 REASONS FOR DECISION C Endicott, Senior Member [1] Reviews of decisions made by the Commissioner for Children and Young People and Child Guardian which prevent persons from being able to work with children are part of the jurisdiction regularly exercised by QCAT. Commonly referred to as a blue card, a positive notice issued by the Commissioner is one end point of a screening process for child-related employment which is designed to ensure that only suitable persons are employed in child-related employment. The other end point is a negative notice which prevents persons from engaging in child-related employment. [2] I have had the advantage of reading the reasons of Ms Browne and I agree with her analysis of, and conclusions about, the issues to be determined in this appeal. Those issues are fundamental to the manner in which QCAT must consider blue card reviews and it is necessary to set out clearly how those issues should be handled by the Tribunal in all cases involving blue card reviews. [3] For reasons discussed by Ms Browne, the outcome of the decision by the Appeal Tribunal in this case will not result in the decision of the original Tribunal delivered on 10 December 2012 being set aside but the reasoning used by the original Tribunal has nevertheless led to error. The Tribunal quite correctly identified protective factors from the evidence it accepted and also identified risk factors. The Tribunal then quoted extensively from cases which had examined the concepts of risk to the safety of children and stated that the discussion of the concepts of risk was useful for the context of the decisions that the Tribunal must make.1 [4] Then based on some analysis of the evidence preferred by the Tribunal, it found that the balance of protective factors and risk factors had not resulted in an exceptional case being established. The wording used by the Tribunal was “that this was not an exceptional case where there was an unreasonable risk of harm to children”.2 However confusingly, and no doubt as a result of typographical error, the Tribunal five paragraphs later stated that it was satisfied, after weighing the protective and risk factors, that it had been established that there was an exceptional case against Mr Eales receiving a blue card.3 That obvious typographical error is however not the error which causes the Appeal Tribunal particular concern for the reasons discussed by Ms Browne. [5] The error that is of concern arises when the original Tribunal uses a test for exceptional case that has been discredited by the Appeal Tribunal in Commissioner for Children and Young People and Child Guardian v 1 Eales v Commissioner for Children and Young People and Child Guardian [2012] (Unreported, Queensland Civil and Administrative Tribunal, 10 December 2012), at [62]. 2 Ibid at [65]. 3 Ibid at [70]. -- 3 of 11 -- 4 FGC.4 The error is implicit in the original Tribunal‟s explanation of what approach was endorsed by the Court of Appeal for finding whether an exceptional case exists or not in Commissioner for Children and Young People and Child Guardian v Maher.5 The original Tribunal had interpreted what was said by the Court of Appeal in the Maher case in the following terms: “…if the negative risk factors outweigh the protective factors that an unacceptable level of risk of harm exists. This unacceptable level of risk of harm is then capable of constituting an exceptional case.”6 With respect to the original Tribunal, there is no basis for that explanation or interpretation of the Maher decision. [6] The Court of Appeal did not endorse the method of balancing identified protective factors against risk factors in that case to find whether an exceptional case existed. The Court of Appeal did not endorse the concept that an unacceptable level of risk of harm exists if negative risk factors outweighed protective factors in a balancing exercise. The Court of Appeal did not endorse a finding that this level of unacceptable risk is capable of constituting an exceptional case. [7] At its highest, the Court of Appeal did not criticise or otherwise adversely comment on the method of identifying from the evidence in any case relevant protective factors and risk factors when considering whether an exceptional case exists such that it would not harm the best interest of children for a blue card to be issued to a person. What was considered by the Court of Appeal was the presence of exceptional circumstances which were capable of rendering Mr Maher‟s case as an exceptional case. What the Court of Appeal confirmed was that the Tribunal could correctly find that the number of significant protective factors present in Mr Maher‟s case rendered the case an exceptional one having regard to, and being satisfied about, the criterion specified by the Act.7 [8] The Court of Appeal found that the exceptional circumstances identified in Maher‟s case had taken the case outside the normal rule and thus had made it an exceptional case.8 No precondition of an outweighing of negative risks factors to protective factors was necessary before an exceptional case was found and no use of the wording “unacceptable level of risk” was made by the Court of Appeal in the Maher Case. [9] In the FGC case in 2011, the Appeal Tribunal rejected the argument that principles brought across from the family law jurisdiction involving an unacceptable risk of harm should be resorted to in order to interpret what is meant by the phrase “exceptional case” in the Commission for Children and Young People and Child Guardian Act 2000. The Appeal Tribunal 4 [2011] QCATA 291. 5 [2004] QCA 492. 6 Eales v Commissioner for Children and Young People and Child Guardian op cit at [74] 7 Commissioner for Children and Young People and Child Guardian v Maher op cit at [28]. 8 Ibid at [29]. -- 4 of 11 -- 5 rejected the argument that the words in that phrase must be read and construed in a particular way, different from their ordinary meaning.9 [10] The Appeal Tribunal accepted that the phrase “exceptional case” must be considered in the context of the legislation which contains that phrase, the intent and purpose of that legislation, and the interests of the persons whom it is designed to protect.10 The Appeal Tribunal stated that the proper approach is to consider the application of the phrase in each particular case unhampered by any special meaning or interpretation.11 [11] It can seen from an analysis of the Maher and FGC cases that interpreting the facts of a given case through the prism of balancing factors to ascertain whether an unacceptable level of risk of harm is present is an error that is more than a matter of semantics. That approach sets up a test that is not part of the statutory process for determining whether a positive or negative notice should be issued. The Act does not set up a system whereby any case in which negative risk factors outweigh protective factors must result in a blue card being declined. [12] What the Act does is to require an exceptional case being established if, for convictions for other than a serious offence, the Commissioner is to refuse a blue card. If there are exceptional circumstances in a case, then, consistent with the principles identified by the Court of Appeal in Maher‟s case, the Tribunal can find an exceptional case having regard to the criterion specified in the Act. J Browne, Member [13] The Commission for Children and Young People and Child Guardian Act 2000 (Commission Act) confers power on the Commissioner to issue a positive notice to a person who has applied to enable the person to work with children. [14] The purpose of the Commission Act is to „promote and protect the rights, interests and wellbeing of children in Queensland.’12 Of paramount consideration is that in issuing a blue card to a person, a child is „cared for in a way that protects the child from harm and promotes the child’s wellbeing‟.13 [15] On 25 October 2010 the Commissioner issued a negative notice to Mr Eales following receipt of information from the Queensland Police Service (QPS) and submissions made by Mr Eales. The Commissioner found that Mr Eales‟ application was an exceptional case „in which it would not be in 9 Commissioner for Children and Young People and Child Guardian v FGC op cit at [33]. 10 Ibid at [31]. 11 Ibid at [33]. 12 Commission Act s 5. 13 Commission Act s 155. -- 5 of 11 -- 6 the best interests of children for the commissioner to issue a positive notice‟.14 [16] The QPS information included Mr Eales‟ criminal history of offences for the period from 1980 to 1984; and in 2006 and 2007. [17] Mr Eales sought a review of the Commissioner‟s decision made on 25 October 2010. The application proceeded to a hearing before the Tribunal over 3 days on 11 May 2011, 15 September 2011 and 23 May 2012. The Tribunal heard evidence from Mr Eales and his character witnesses. Expert evidence was also heard from a qualified psychologist who assessed Mr Eales' „risk of reoffending as low‟.15 [18] The Tribunal‟s power, on review, is to produce the correct and preferable decision and to hear and decide the review by way of a „fresh hearing on the merits‟.16 Reasons for the Tribunal‟s decision were made on 10 December 2012. The Tribunal found (on review) that this is not an „exceptional case‟ and set aside the Commissioner‟s decision to issue a negative notice. [19] The Commissioner has filed an application to appeal the decision of the Tribunal made on 10 December 2012. The Commissioner does not seek an order to set aside the Tribunal‟s decision. Relief is sought in the form of an amendment of the Tribunal‟s „reasoning‟ in finding that this is not an „exceptional case‟; and in particular the Tribunal‟s reasoning in its consideration of the decision in Commissioner for Children and Young People and Child Guardian v FGC17. In the alternative the Commissioner seeks an order that the Tribunal‟s decision be returned to the Tribunal who made the original decision for „clarification and consistency‟ with respect to the reasoning of what is an „exceptional case‟ in reviewing a decision made under the Commission Act.18 [20] The Commissioner filed its application to appeal on 15 January 2013 being 29 days after receiving the Tribunal‟s decision on 14 December 2012. This is 1 day outside the prescribed 28 days under s 143 of the QCAT Act. The Commissioner seeks an extension of time to file its application. Extension of Time for filing the Application to Appeal [21] The time for filing an application for leave to appeal or appeal is within 28 days after „the person is given written reasons for the decision being appealed against‟.19 The Appeal Tribunal has the power to grant an extension of time under the QCAT Act. In an earlier decision of the Appeal 14 Commission Act s 221(2). 15 Eales v Commissioner for Children and Young People and Child Guardian [2012] (Unreported, Queensland Civil and Administrative Tribunal, Member Johnstone, 10 December 2012), at [33]. 16 QCAT Act s 20. 17 [2011] QCATA 291. 18 Application to appeal filed 15 January 2013. 19 QCAT Act s 143. -- 6 of 11 -- 7 Tribunal, McClintock v Queensland Building Services Authority,20 the relevant discretionary factors in granting an extension of time were considered: whether there has been a reasonable explanation for the delay in filing the application; whether the granting of an extension of time would be fair and reasonable in all of the circumstances; whether there has been any prejudice suffered as a result of the delay; and, whether the substantive application has merit.21 [22] The Commissioner contends that the decision of the Tribunal was received on Friday, 14 December 2012 and an attempt was made to lodge the application together with the appropriate fee on 14 January 2013 the next available day for filing, but it was refused by the registry. It was a regrettable oversight by the registry to refuse the Commissioner‟s application to appeal on 14 January 2013. The Appeal Tribunal is satisfied that a reasonable explanation for the delay in filing the appeal has been provided and that the delay is otherwise not significant. [23] There is a strong public interest in the Commissioner‟s functions in issuing a positive notice to a person, upon applying, in ensuring that the protection of children is paramount. This is a relevant factor in determining whether an extension of time should be granted. [24] The Appeal Tribunal is satisfied that there are no other factors which would otherwise warrant the refusal of the granting of an extension of time to file the application for leave to appeal or appeal. There is no evidence of any prejudice to Mr Eales that may be attributable to the delay in filing the appeal. The Commissioner does not seek an order from the Appeal Tribunal to set aside the Tribunal‟s decision. The application for an extension of time is granted. Grounds of Appeal [25] The Commissioner effectively raises two grounds in the appeal in that it argues the Tribunal‟s decision contains errors of law concerning the „notion of unacceptable risk’22 and the discretion exercised by the Tribunal in determining whether an „exceptional case‟ exists. [26] The Commissioner contends that the Tribunal has made „strong‟ references to „unacceptable risk‟ and the „manner‟ in which the Tribunal has considered the decision in Commissioner for Children and Young People and Child Guardian v Maher23 is inconsistent with the decision in Commissioner for Children and Young People and Child Guardian v FGC.24 [27] The second ground of appeal relates to the adequacy of reasons of the Tribunal‟s decision in that the Commissioner contends there are „contrary‟ statements in paragraphs [65]-[70] in determining whether an „exceptional case‟ exists. 20 [2010] QCATA 68 at [4]. 21 Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) FCR 344. 22 Application to appeal, filed 15 January 2013. 23 [2004] QCA 492. 24 [2011] QCATA 291. -- 7 of 11 -- 8 [28] The Appeal Tribunal has the power to grant relief under the QCAT Act if it is satisfied that there has been an error in the Tribunal‟s decision on a question of law, mixed fact and law, or of fact. A question of fact, or mixed law and fact may only be made if the Appeal Tribunal has granted leave to appeal.25 [29] In Ash Industries Pty Ltd v Plumb26 the Appeal Tribunal considered the distinction between questions of law and fact. The President stated: A concise and helpful summary appears, in my view, in this passage from a decision of the Supreme Court of Canada: Briefly stated, questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests.27 [30] It was further determined by the Appeal Tribunal in the decision of Racing Queensland Limited v Dixon28 that questions raised on appeal as a question of law should proceed before the Appeal Tribunal without leave. The Deputy President stated: Provided that the question raised by the relevant appeal ground is properly framed as a question of law then the appeal on that ground may proceed before the Appeal Tribunal as of right. Leave is not required.29 [31] In the present case the grounds of appeal identify errors of law in the Tribunal‟s reasoning as to the applicability of the decisions in FGC‟s case and Maher‟s case in determining whether an „exceptional case‟ exists. The appeal also raises a question of law as to contrary statements contained in the decision in determining whether an „exceptional case‟ exists. The grounds of appeal do not raise any errors in the Tribunal‟s findings of fact and the Commissioner does not seek an order to set aside the decision. The appeal should proceed without leave. Ground One: Meaning of An ‘Exceptional Case’ [32] A consideration of what is an „exceptional case‟ under the Commission Act involves the exercise of discretion in that the Commissioner or Tribunal, on review, is required to issue a positive notice unless satisfied that „it would not be in the best interests of children’.30 [33] The Commission Act does not define the meaning of „exceptional case‟. Section 226 of the Act requires the Commissioner or Tribunal, on review, to have regard to certain factors in determining whether an „exceptional case‟ exists including the nature of the offence. The factors prescribed under s 226 of the Commission Act are not exhaustive and include any 25 QCAT s 142(3)(b). 26 [2010] QCATA 53. 27 Canada (Director of Investigation and Research) v Southam Inc [1997] 1 SCR 748 at [35], see Collector of Customs v Agfa-Gevaert Ltd (1995) 186 CLR 389 at 394. 28 [2013] QCATA 172. 29 Ibid at [9]. 30 Commission Act s 221(2). -- 8 of 11 -- 9 factors „reasonably considered‟ relevant to the „assessment‟ of the person.31 [34] In exercising the discretion under the Commission Act the Commissioner or Tribunal, on review, must ensure that the safety and wellbeing of children is its paramount consideration.32 [35] In earlier decisions of the Tribunal and the former Children Services Tribunal the relevant factors considered in the exercise of discretion to determine whether an „exceptional case‟ exists have been referred to as negative and protective factors. [36] In Maher‟s case, Philippides J considered this approach taken by the former Children Services Tribunal in balancing the negative and protective factors. Philippides J stated: …the Tribunal found there were present a number of significant protective factors which constituted „exceptional circumstances‟, such that it would not harm the best interest of children for a positive notice to be issued, its ultimate determination was made having regard to the criterion specified by the Act and its satisfaction that the criterion had been met. I can see no error in that approach.33 [37] The findings made by Philippides J as to the „approach‟ taken by the former Children Services Tribunal must be considered in the context of the decision making power conferred under the Commission Act. That is, the Tribunal is required to exercise a discretion and in so doing, as stated by Philippides J, it would be „unwise to lay down any general rule‟ to determine what is an „exceptional case‟.34 [38] In FGC‟s case the Appeal Tribunal endorsed the findings of Philippides J in finding that the meaning of an „exceptional case‟ for the purposes of the Commission Act is a matter of discretion and should not be confined to „any general rule‟. The President in FGC‟s case stated: We accept that the phrase is to be read in the particular context of the legislation in which it occurs, but are not persuaded that the legislature intended to give it a meaning which was special, or unusual. It is a term of common use in everyday language. The proper approach to it is that, with respect, adopted by Philippides J: to consider its application in each particular case, unhampered by any special meaning or interpretation.35 [39] In the present case the Tribunal has fallen into error in referring to the findings made in Maher‟s case. The Tribunal has incorrectly determined that if the negative risk factors outweigh the protective factors then this is an „unacceptable risk‟ and is „capable of constituting an exceptional case‟.36 31 Ibid s 226(2)(e). See Philippides J in Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492 at [42]. 32 Commission Act s 5. 33 Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492 at [28]. 34 Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492 at [34]. 35 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, at [33]. 36 Ibid at [74]. -- 9 of 11 -- 10 [40] The Tribunal stated in paragraphs [74] and [75]: What the Court of Appeal in Maher effectively said [sic] that if the negative risk factors outweigh the protective factors that [sic] an unacceptable level of risk of harm exists. This unacceptable risk of harm is then capable of constituting an exceptional case. In other words the Tribunal when looking at each case on its merits looks at the protective factors and risk factors. If the negative or risk factors outweigh the positive factors then this is basis to determine that the exceptional case exists. In this case there are a cluster of negative factors which have been talked about above. The Applicant has also presented a cluster of protective factors. [41] In referring to Maher‟s case the Tribunal has effectively set out a test or rule which it has followed in „weighing‟ the negative and protective factors to determine whether there is an „unacceptable risk of harm‟. [42] The approach taken by the Tribunal is not consistent with the findings made by Philippides J in Maher‟s case and later endorsed in FGC‟s case. There is no test or „general rule‟ in the exercise of discretion to determine what is an „exceptional case‟. Correctly stated, the discretion to be exercised by the Tribunal, on review, is unfettered by any general rule in considering the relevant factors to determine whether in all of the circumstances it is in the best interests of children for a positive notice to be issued. Ground Two: Adequacy of Reasons [43] The Tribunal‟s decision regrettably contains many typographical errors, incorrect formatting and statements that are contrary to the findings made in the reasons. In particular the Tribunal‟s reference in paragraph [68] to „she‟ instead of „he‟ as being „an unacceptable risk‟ is clearly a mistake. Similarly the reference to „an exceptional case‟ in paragraph [70] is also a mistake. Under the QCAT Act a decision that contains a clerical mistake; or an error arising from an accidental slip or omission; or a defect of form, may be corrected.37 Some of the errors in the decision including the incorrect formatting and the errors in paragraphs [68] and [70] may be corrected through the relevant section of the QCAT Act. [44] The Appeal Tribunal is not satisfied that the Tribunal‟s reasons, as they relate to the second ground of appeal, are otherwise inadequate to constitute an error of law. It was previously determined by the Appeal Tribunal in Ricchetti v Lanbuilt Pty Ltd38 that the adequacy of the Tribunal‟s reasons must be considered „in light of the simpler, expedited procedures it is obliged to adopt under the QCAT Act‟.39 [45] In the present case the Tribunal has identified the relevant factors to be considered under the Commission Act in determining whether an „exceptional case‟ exists. The Tribunal has also summarised the QPS information together with the relevant evidence presented at the hearing. The Tribunal‟s findings in relation to the evidence presented at the hearing are clearly set out and justify the orders made. The Tribunal succinctly 37 QCAT, s 135. 38 [2011] QCATA 266, at [3]. 39 Ibid, see Cypressvale Pty Ltd v Retail Shop Leases Tribunal[1996] 2 Qd R 462 at 485. -- 10 of 11 -- 11 states in paragraph [88] that ‘[t]he Tribunal is satisfied that this is not an exceptional case in which it would be in the best interests of children for a negative notice to be issued‟.40 The appeal as it relates to ground two will be dismissed. Power to Grant Relief on Appeal: Ground One [46] The Appeal Tribunal has found that the Tribunal fell into error in referring to Maher‟s case and effectively setting out a test or rule to be followed in determining whether an „exceptional case‟ exists. Notwithstanding the error made by the Tribunal it has not, however, fallen into error in determining, on review, all of the relevant factors and finding that this is not an „exceptional case‟. [47] In deciding an appeal against a decision of the Tribunal on a question of law only the Appeal Tribunal may confirm or amend the decision; or set aside the decision and return the matter to the Tribunal; or may make any other order it considers appropriate.41 [48] There is no order that the Appeal Tribunal can make to remedy the error made by the Tribunal. The Tribunal does not respectfully have the power under the QCAT Act to grant the relief sought by the Commissioner to amend the „reasoning‟ of the Tribunal; and in the alternative to return the decision to the Tribunal for „clarification and consistency‟. [49] The Appeal Tribunal has, for the purposes of addressing the grounds of appeal and consistent with its objectives under the QCAT Act to „promote the quality and consistency‟42 of decisions, correctly stated the meaning of an „exceptional case‟ in exercising discretion under the Commission Act. The appeal as it relates to ground one should be refused. 40 Eales, at [88]. 41 QCAT Act s 146. 42 QCAT Act s 3(d). -- 11 of 11 --