Department of Communities v Stalley [2011] QCATA 93

CITATION: Department of Communities v Stalley [2011] QCATA 93 PARTIES: Department of Communities (Disability Services) (Appellant) v Michelle Stalley (Respondent) APPEAL NUMBER: APL184-10 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Alan Wilson, President Clare Endicott, Senior Member DELIVERED ON: 8 April 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. The appeal is allowed. 2. The decision made on 27 July 2010 is set aside. 3. The application for review is returned to the Tribunal for reconsideration. CATCHWORDS: APPEAL – ERROR OF LAW – where negative notice issued to respondent by Department – where Tribunal set aside Department’s decision and issued a positive notice – whether Tribunal erred by imposing onus on the Department to establish this was an exceptional case Commission for Children and Young People and Child Guardian Act 2000 Disability Services Act 2006 Queensland Civil and Administrative Tribunal Act 2009 Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28, cited -- 1 of 4 -- 2 Re Walterscheid Australia Pty Ltd v Collector of Customs (1988) FCA 20, cited Australian Broadcasting Tribunal v Bond [1990] 170 CLR 321, cited APPEARANCES and REPRESENTATION (if any): The 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 President: [1] I have had the advantage of reading Ms Endicott’s reasons in draft. I agree with them, and the orders she proposes. Senior Member Clare Endicott: [2] On 26 March 2010 the Department of Communities (Disability Services) issued, pursuant to s 85(5) of the Disability Services Act 2006 (DSA), a negative notice to Michelle Stalley which would prevent her from working with people with disabilities. [3] The decision-maker at the Department had been satisfied that the evidence had established, with reference to the legislation which governs these matters (s 85(4) of the DSA), an exceptional case in which it would not be in the best interests of people with a disability for a positive notice to issue. [4] Ms Stalley sought a review of that decision. On 27 July 2010 the Tribunal set aside the decision of the Department, and directed that a positive notice be issued to her. [5] The Department has lodged an appeal based on what it contends is an error of law: namely, that the Tribunal had misdirected itself as to the law to be applied. On 10 December 2010 this Appeal Tribunal determined that the appeal would be determined on the papers, and made directions for the parties to file submissions. [6] Under s 142 of the QCAT Act an appeal may only be brought directly to the QCAT Appeal Tribunal on a question of law. Otherwise, leave is necessary. For reasons which follow I am satisfied that the Department’s appeal is on a question of law; and, that it should succeed. [7] The Department argues that the Tribunal erred in law at the hearing by misdirecting itself as to the issues to be taken into account in determining whether an exceptional case had been established. In supplementary submissions the Department argued, further, that the Member of the Tribunal had erred in law in directing himself that there was an onus on the Department to satisfy the Tribunal that an exceptional case had been established. [8] In the transcript of the hearing the Member is recorded as saying the following: ‘So the onus is on the Department to convince me that it was -- 2 of 4 -- 3 appropriate, that you are an exceptional case, and therefore a negative notice should have been issued.’ [9] In the written reasons for his decision, the learned Tribunal Member said: …it is the decision of the Tribunal that the Department has not satisfied the provisions of section 85(4) of the Disability Services Act 2006 that requires the Department to establish that Michelle’s is an exceptional case. [10] It was submitted by the Department that, in review applications the Tribunal has all the functions of the decision-maker; that the purpose of reviewing a decision is for the correct and preferable decision to be reached by the Tribunal; and, the review hearing is conducted by way of a fresh hearing on the merits.1 [11] The Department referred in its submissions to Bushell v Repatriation Commission2 in which the High Court of Australia confirmed that the role of a tribunal, in conducting a review of a reviewable decision, is as an administrative decision-maker and the tribunal is under a duty to arrive at a decision according to the material before it. [12] In Bushell the High Court observed that the notion of onus of proof has no part to play in administrative proceedings. That principle has been followed in QCAT: in a recent decision of this Appeal Tribunal, on a similar issue raised in the appeal of a decision made under the Commission for Children and Young People and Child Guardian Act 2000, it was determined that there is no onus on the original decision-maker to convince the Tribunal that an exceptional case exists. Rather, it was held that the Tribunal is required to determine whether an exceptional case exists or not, after evaluating all the available evidence before it, without any party bearing the onus of proof that an exceptional case exists.3 [13] There is no apparent reason that the principle ought not apply to administrative decisions made under s 85 of the DSA. [14] The learned Member here has, with respect, wrongly approached the matter on the basis that the Department carried the onus of satisfying him that an exceptional case existed, in which it would not be in the best interests of people with a disability for a positive notice to issue to Ms Stalley. [15] The learned Member fell into error in requiring the Department to discharge an onus that, at law, did not exist. The Department submitted that this constituted an error of law which should result in the decision being set aside. The established position appears to be that if an error of law is not material to the decision under appeal, the decision does not inevitably have to be set aside,4 but if it is found that the error made by the Member did affect the decision in a material way then the decision to issue a positive notice to Ms Stalley must be set aside. 1 See ss 19(c), 20(1) and 20(2) of the QCAT Act. 2 (1991) 175 CLR 408. 3 Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28. 4 Re Walterscheid Australia Pty Ltd v Collector of Customs (1988) FCA 20; Australian Broadcasting Tribunal v Bond [1990] 170 CLR 321. -- 3 of 4 -- 4 [16] The reasons for decision do not reveal how the evidence and the submissions of the parties, in the context of s 86 of the DSA, were analysed by the Member. That section requires a decision-maker to have regard to specified matters when exercising the discretion as to whether an exceptional case exists. The Member appeared to rely solely on the fact that Ms Stalley had successfully obtained a favourable review of a decision not to issue her with a positive notice under the Commission for Children and Young People and Child Guardian Act 2000. [17] In the absence of any analysis of the material by the Tribunal, or a proper explanation of the process by which the Member reached his decision, it is not possible to be satisfied that the Member came to his conclusion on the basis of an analysis of the matters set out in s 86. It follows that it is not possible to conclude that the error of law did not materially affect the decision to direct that a positive notice be issued to Ms Stalley. [18] In view of that finding, it is not necessary to address the Department’s further submission that the Tribunal had made another error of law in directing that the matters to be taken into account in respect of s 85(4) of the DSA are identical with the matters to be taken into account under s 100 of the Commission for Children and Young People and Child Guardian Act 2000. [19] The Department submitted that the decision of the Tribunal must be set aside. That is one of the alternatives open when an appeal on a question of law is successful,5 as must be the case here. Unfortunately, because of the gaps in the reasons of the Tribunal at first instance, it is necessary to have the matter re-determined.6 The original decision is set aside and the application for review is returned to the Tribunal for reconsideration according to the law as it has been explained in this decision. 5 QCAT Act, s 146. 6 QCAT Act, s 146(c). -- 4 of 4 --