Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28

CITATION: Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28 PARTIES: Commissioner for Children and Young People and Child Guardian v John Storrs APPLICATION NUMBER: APL 052-10 MATTER TYPE: Appeals HEARING DATE: 1 December 2010 HEARD AT: Brisbane DECISION OF: Judge Fleur Kingham (Deputy President) Ms Clare Endicott (Senior Member) Dr Nigel Collings (Member) DELIVERED ON: 17 February 2011 DELIVERED AT: Brisbane ORDERS MADE: Appeal dismissed. CATCHWORDS : APPEAL – ERROR OF LAW – where negative notice issued to respondent by Commissioner – where Tribunal set aside Commissioner’s decision and issued a positive notice – whether Tribunal erred by imposing onus on the Commissioner to establish this was an exceptional case – whether Tribunal erred by failing to take into account or give proper weight to relevant considerations – whether Tribunal erred by taking into account irrelevant considerations – whether Tribunal obliged to obtain evidence on a relevant matter Child Protection Act 1999 s 122 Commission for Children and Young People and Child Guardian Act 2000 ss 221(2), 225(2) Queensland Civil and Administrative Tribunal Act 2009 ss 20, 21(1), 28(3)(e), 97(1), 98(1)(a) -- 1 of 12 -- Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 applied Bushell v Repatriation Commission (1991) 175 (CLR) 408 applied Commissioner for Children and Young People and Child Guardian v Johnson [2010] QDC 113 followed Commissioner for Children and Young People and Child Guardian v Ross & Anor [2008] QDC 82 distinguished Hill v Repatriation Commission [2005] FCAFC 23 applied Federal Commissioner of Taxation v Swift [1989] FCA 413 applied Johnson v Commissioner for Children and Young People and Child Guardian unreported 31 August 2010 in CSR156-08 followed K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 60 ALR 509 applied Nguyen Do Vinh v Minister for Immigration and Ethnic Affairs (1997) 46 ALD 528 applied Re Walterscheid Australia Pty Ltd v Collector of Customs (1988) FCA 20 applied Secretary, Department of Social Security v Murphy [1998] FCA 809 applied APPEARANCES and REPRESENTATION (if any): APPLICANT : Commissioner for Children and Young People and Child Guardian appearing by Craig Capper, Senior Legal Officer RESPONDENT: John Storrs appearing on his own behalf REASONS FOR DECISION Judge Kingham (Deputy President): [1] I have had the advantage of reading the reasons of Ms Endicott in draft with which I agree. I wish to make some further observations about the Commissioner’s submission that the Tribunal was obliged to seek out evidence from the Department of Community (Child Safety Services) about Mr Storr’s knowledge of the Department’s Statement of Standards. [2] In support of that submission, the Commissioner relied on the following passage from a decision of his Honour Judge Tutt in Commissioner for Children and Young People and Child Guardian v Ross & Anor [2008] QDC 82: -- 2 of 12 -- “[24] … it was incumbent upon the tribunal in considering the ‘paramountcy principle’ set out under the Act and the level of satisfaction needed for the purposes of s 102(7) to have before it all available evidence relevant to “risk” factors vis-à-vis the first respondent and children, before issuing a positive notice. Particularly is this so as the “blue card” does not have any limitations on conditions on the extent to which a recipient thereof may be involved with children, be it paid employment or voluntary work.” [3] Ross is not an authority binding the QCAT Appeal Tribunal. The decision was made before the commencement of QCAT and his Honour was there considering an appeal from a decision of the Children Services Tribunal conducted under an Act since repealed. [4] Nevertheless, the function of QCAT in relation to blue card matters is synonymous with the function of the former Tribunal. The District Court formerly possessed the appellate function now performed by the QCAT Appeal Tribunal and decisions of the Court in such matters have persuasive authority. [5] I am not convinced his Honour intended, in that passage, to state as a general proposition that the Tribunal was under an obligation to search out and secure the provision of evidence, whether or not that course was requested by a party to the proceedings. [6] In Ross the applicant for the blue card had been convicted of a serious sexual offence committed on a young relative in a domestic environment. He informed the Tribunal that he had sought a report from his psychiatrist, presumably to assess what risk he might pose to children, but the specialist declined because, he said, the report would be bad. The Tribunal elected to continue with the hearing in the absence of a report. [7] His Honour concluded that, in the absence of psychiatric or other medical evidence about the risk the applicant might pose to children, it had erred by not properly considering the paramountcy principle. [8] It seems to me, with respect, that his Honour’s remarks about the principle were directed to the particular circumstances of that case. On the evidence available to the Tribunal, had the paramountcy principle been properly considered and applied, the Tribunal could not have been satisfied that the applicant’s circumstances constituted an exceptional case such that a blue card should issue. That is not the case in the subject proceedings. [9] If, by stating it was incumbent upon the tribunal… to have before it all available evidence, his Honour intended to declare the Tribunal was under a positive obligation to gather evidence about risk factors, I respectfully decline to follow that reasoning. [10] I adopt Ms Endicott’s analysis of the scope of the Tribunals’ role and function in its review jurisdiction. I concur with her conclusion that, in -- 3 of 12 -- the circumstances of this case, the Tribunal did not err in determining the application on the basis of the evidence led by the parties. [11] On 14 and 15 December 2009 the Tribunal conducted a hearing of an application by John Storrs seeking to review a decision made on 12 June 2009 by the Commissioner for Children and Young People and Child Guardian (the Commissioner) to issue to him a negative notice and to refuse him a blue card under the Commission for Children and Young People and Child Guardian Act 2000. Ms Clare Endicott (Senior Member): [12] On 5 March 2010 the tribunal delivered a majority decision which directed the Commissioner to issue a positive notice and blue card to Mr Storrs forthwith. There was a minority decision which confirmed the original decision under review to issue a negative notice. The Commissioner has filed an appeal against the decision of the tribunal on the following grounds: a) The tribunal misdirected itself and/or erred at law with regards to the imposition of an onus upon the Commissioner which has no legislative or legal basis. b) The tribunal misdirected itself and/or erred at law as to the test for exceptional circumstances by failing to take into account or give adequate weight to relevant considerations. c) The tribunal misdirected itself and/or erred at law by taking into account an irrelevant consideration or placing inappropriate weight upon evidence, namely Mr Storrs’s knowledge or lack thereof, of the Standards of Care prescribed by section 122 of the Child Protection Act 1999. d) The tribunal misdirected itself and/or erred at law by failing to inform itself and have before it all relevant evidence on point before concluding that Mr Storrs was not aware of the Standards of Care. [13] The first ground of appeal relates to the following statement contained in paragraph 28 of the reasons for decision of the majority: “It is for the Commission to convince the Tribunal that on the balance of probabilities John’s is an exceptional case such that it would harm the best interests of children for him to have a blue card.’ [14] The Commissioner argued that the majority decision was formulated on the consideration that there was a positive onus on the Commissioner to establish an exceptional case and to prove that the issuing of a blue card would harm the best interests of children. The Commissioner submitted that neither the Commission for Children and Young People and Child Guardian Act 2000 (the CCYPCG Act) nor the Queensland Civil and Administrative Tribunal Act 2009 imposed an onus on either party to prove a particular case before the tribunal in review proceedings. -- 4 of 12 -- [15] The Commissioner submitted that rather than imposing an onus on parties to establish a particular case, the CCYPCG Act operates on two different presumptions: in section 221(2) 1 the presumptive position is that a positive notice will issue unless an exceptional case exists and in section 225(2) 2 the presumptive position is that a negative notice will issue unless an exceptional case exists. The Commissioner submitted that the tribunal must determine whether an exceptional case exists or not after evaluating all available evidence before it without any party bearing the onus to prove that an exceptional case exits. [16] It was submitted that the role of the tribunal in this review proceeding was to stand in the shoes of the Commissioner in determining in accordance with section 221(2) whether an exceptional case existed whereby it would not be in the best interests of children for the Commissioner to issue a positive notice. It was submitted that review proceedings were non-adversarial in nature and that the concept of imposing an onus on a party only applies to an adversarial contest and not to review proceedings before this tribunal. [17] These submissions are well supported by the authorities referred to by Counsel for the Commissioner. One such authority was a decision of the High Court of Australia in Bushell v Repatriation Commission 3 in which Brennan J (as he then was), referring to the Administrative Appeals Tribunal of the Commonwealth (AAT), had said: Proceedings before the AAT may appear to be adversarial when the Commission chooses to appear to defend its decision or to test a claimant’s case but in substance the review is inquisitorial. Each of the Commission, the Board and the AAT is an administrative decision- maker, under a duty to arrive at the correct or preferable decision in the case before it according to the material before it …. The notion of onus of proof, which plays so important a part in fact-finding in adversarial proceedings before judicial tribunals, has no part to play in these administrative proceedings. [18] Counsel for the Commissioner also referred to recent cases which have direct relevance to decisions made under the CCYPCG Act 4 and which were of particular assistance in this present case. Those authorities had found that there was no onus on the Commissioner to prove the existence of an exceptional case when considering an application involving section 221(2) of the CCYPCG Act. [19] The tribunal agrees that a proper analysis of the law must lead to the conclusion that there is no onus on the Commissioner to convince the tribunal that on the balance of probabilities Mr Storrs’s case was an exceptional case such that it would harm the best interest of children for 1 Commission for Children and Young People and Child Guardian Act 2000 s 102(4) as at 5 March 2010, subsequently renumbered s 221(2). 2 Commission for Children and Young People and Child Guardian Act 2000 s 102(7) as at 5 March 2010, subsequently renumbered s 225(2). 3 [1992] HCA 47; (1991) 175 CLR 408. 4 Commissioner for Children and Young People and Child Guardian v Johnson [2010] QDC 113; Johnson v Commissioner for Children and Young People and Child Guardian unreported 31 August 2010 in CSR156-08. -- 5 of 12 -- him to have a blue card. The tribunal is required to determine whether an exceptional case exists or not after evaluating all available evidence before it without any party bearing the onus of proof that an exceptional case exits. [20] It is readily discernible that the statement in paragraph 28 of the written reasons of the majority which purported to place an onus on the Commissioner was an incorrect statement of the law but it is not as readily discernible whether that incorrect statement had the effect of leading the tribunal into an error of law. The Commissioner has submitted that the tribunal had misdirected itself as to the test to be applied in section 221(2) of the CCYPCG Act when reviewing the application for the blue card. If that submission is correct, there should be some trace in the reasons of how the majority was actually misdirected in reaching their conclusion. [21] The majority had analysed the evidence and the submissions of the parties in the context of section 221(2) of the CCYPCG Act in paragraphs 122 to 156 of the written reasons. The majority made a series of conclusions in those paragraphs. The majority did not state that any of those conclusions had been made as a result of a failure by the Commissioner to discharge the onus of proof wrongly placed on her in paragraph 28. [22] Reading the reasons of the majority leads the tribunal to find that the various conclusions in paragraphs 122 to 156 were reached after the majority had, as required by law, carried out an evaluation of the relevant information before them. Counsel for the Commissioner was unable to demonstrate how the decision making process of the majority had been misdirected into error by the misstatement of law in paragraph 28 of the reasons or how the majority had been misdirected into wrongly exercising their functions. [23] If the error of law as stated in paragraph in 28 was immaterial to the decision reached by the majority or did not affect the decision in a material way, the decision does not inevitably have to be set aside. 5 If it is found that the error did affect the decision in a material way then the decision must be set aside. [24] The final conclusion reached by the majority, namely that Mr Storrs’s case is not an exceptional case in terms of section 221(2) of the CCYPCG Act, does not appear to have been influenced by the incorrect statement of law set out earlier in paragraph 28 of the reasons. This appeal tribunal concludes that the majority’s error in stating that there was an onus on the Commissioner to prove the existence of an exceptional case in terms of section 221(2) of the CCYPCG Act was immaterial to the decision reached by the majority that no such exceptional case existed after they had evaluated the evidence before them. Ground (a) of the appeal is not established. 5 Re Walterscheid Australia Pty Ltd v Collector of Customs (1988) FCA 20; Australian Broadcasting Tribunal v Bond [1990] 170 CLR 321. -- 6 of 12 -- [25] In ground (b) of her appeal, the Commissioner submitted that the tribunal had erred in law by failing to take into account, or to give adequate weight to, certain relevant considerations which were particularised in the written submissions relied on at the hearing of the appeal. These considerations were stated to be: the seriousness of the totality of the conduct by Mr Storrs, his lack of remorse and lack of insight into his offending behaviour, the likely materialisation of risk, the transferability of the blue card and the presence of the relevant protective factors at the time of the conduct. [26] A reading of the written reasons of the tribunal reveals that the tribunal had taken into account each of the considerations stated in the submissions. 6 Counsel for the Commissioner at the hearing of the appeal quite properly abandoned any reliance on the argument that the tribunal had not taken these considerations into account. Counsel restricted his argument in ground (b) to the premise that the tribunal had erred in law by failing to give adequate weight to these considerations. [27] Counsel, however, was unable to provide a satisfactory response to the questioning by the appeal tribunal as to how the failure by the tribunal to give adequate weight to certain evidence adduced at the hearing amounted to an error of law. It is well established that a finding of fact by a tribunal based on its assessment of the credit of a witness should not be disturbed on appeal unless the conclusions were inconsistent with the overwhelming body of the evidence. 7 An assertion that the tribunal attached undue weight to a particular matter or gave excessive weight to some other matter does not of itself give rise to an error of law. 8 [28] The findings made by the tribunal on all of the considerations raised in the appeal and set out in paragraph 15 of these reasons were based on an evaluation of the evidence adduced at the hearing. In some instances the evidence produced by Mr Storrs was contradicted by evidence relied on by the Commissioner. The parties differed in their views as to how the evidence should be interpreted by the tribunal when exercising its determinative role in terms of section 221(2) of the CCYPCG Act. Such is the position that all decision-makers face when reaching conclusions in disputed matters. [29] However it cannot be established that the findings of fact made by the tribunal and the conclusion it reached on the absence of an exceptional case under section 221(2) of the CCYPCG Act were inconsistent with the overwhelming body of evidence before it. The evidence on each of the stated considerations was sufficient to support the conclusions made by the tribunal. 6 See paragraphs 130-131, 134-135, 141-142, 144, 150-156 of the tribunal’s reasons. 7 Nguyen Do Vinh v Minister for Immigration and Ethnic Affairs (1997) 46 ALD 528; Hill v Repatriation Commission [2005] FCAFC 23. 8 Federal Commissioner of Taxation v Swift [1989] FCA413; Hill v Repatriation Commission [2005] FCAFC 23. -- 7 of 12 -- [30] Counsel for the Commissioner raised an associated argument at the hearing of the appeal that the tribunal had wrongly limited its consideration of the evidence about the materialisation of risk to the particular circumstances that had existed in 2004. Counsel argued that the correct consideration that the tribunal should have taken into account was whether risk would materialise in any circumstance in which a blue card could be used by Mr Storrs and not just in the circumstances where children were living in his home. [31] This argument is not accepted. The reasons of the majority clearly reveal that they did not limit consideration of materialisation of risk to the particular circumstances that had existed in 2004 when children had been living in Mr Storrs’s home. At paragraphs 150 to 155 the tribunal noted the transferability of a blue card and was aware that Mr Storrs could have contact with children in a variety of settings if issued with a blue card. The tribunal was satisfied after considering all of the evidence that Mr Storrs would not engage in physical discipline of children during either community based activities or while in a substituted parenting role. Such a finding was open to the tribunal and will not be disturbed on appeal. Ground (b) of the appeal is not established. [32] In ground (c) of her appeal, the Commissioner submitted that the tribunal had erred in law by taking into account an irrelevant consideration, or by placing inappropriate weight on evidence, that Mr Storrs lacked knowledge about the Standards of Care prescribed by section 122 of the Child Protection Act 1999. It was argued that the failure by Mr Storrs to read the Standards of Care was not a relevant consideration as ignorance of his statutory obligations cannot be used as an excuse for his conduct. The Commissioner submitted that Mr Storrs’s lack of knowledge about the Standards of Care had significantly influenced the tribunal’s reasoning and had lead the tribunal into error. [33] The majority accepted the evidence of Mr Storrs that the Department of Communities (Child Safety Services) had not explained the Standards of Care to him.9 However the tribunal clearly did not accept that any lack of knowledge of the Standards of Care could be used to excuse Mr Storrs’s conduct in inflicting corporal punishment of the children in his care. The tribunal found that the regime of corporal punishment used by Mr Storrs was not appropriate.10 [34] The argument by the Commissioner in ground (c) is not sound. The tribunal did not give consideration to whether Mr Storrs should be excused for his conduct in August 2004 due to ignorance of the law. What the tribunal did was to consider whether Mr Storrs should be issued a blue card in 2010 by taking into account potential risk factors and potential protective factors arising from the evidence. 11 9 Paragraph 138 of the tribunal’s reasons. 10 Paragraph 141 of the tribunal’s reasons. 11 Paragraph 122 of the tribunal’s reasons. -- 8 of 12 -- [35] In this context, Mr Storrs’s lack of knowledge of the Standards of Care in 2004 was not categorised as one of the factors taken into account by the tribunal in reaching its decision. It was clearly no longer a risk factor as Mr Storrs had become aware of the prohibition against the use of corporal punishment. While his lack of knowledge in 2004 was discussed as part of the evidence, it was in reality his knowledge of the Standards of Care in 2010 that was taken into account as a protective factor.12 [36] In ground (d) of the appeal, the Commissioner argued that the tribunal had erred in law by failing to obtain all relevant evidence before concluding that Mr Storrs had not been aware in 2004 of the Standards of Care. It was submitted that the tribunal should have ensured that relevant evidence from the Department of Communities (Child Safety Services) as to the discussions between Mr Storrs and that Department was before the tribunal before the tribunal placed such a significant reliance on the finding that Mr Storrs was unaware of the Standards of Care. [37] It was submitted that if the Department had informed Mr Storrs of the Standard of Care and if Mr Storrs had knowingly failed to exercise those Standards, this would be a highly significant and relevant consideration in assessing the likely materialisation of risk of harm to children. Ground (d) requires an examination of the obligation placed on the tribunal by section 28(3)(e) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). [38] That subsection of section 28 is, where relevant: (3) In conducting a proceeding, the tribunal…. (e) must 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. It can be seen that the subsection places a responsibility on the tribunal to take steps to obtain all relevant material. [39] Counsel for the Commissioner submitted that the obligation in section 28(3)(e) of the QCAT Act is not limited to situations where the tribunal must ensure that the parties disclose all relevant documents to the tribunal but extends to the tribunal being proactive in ensuring that all relevant facts are before it by calling witnesses and requiring the production of documents from non parties. [40] The former Children Services Tribunal had conferred with the parties in August 2009 and had identified with their assistance the issues to be considered at the final hearing. The former tribunal had at that time made directions to ensure that documents held by non parties relevant to the identified issues were provided to the tribunal for the hearing [41] The tribunal had issued to the Department of Communities (Child Safety Services) a notice to produce all records regarding the withdrawal of the carer approval of Mr Storrs to the tribunal. In obtaining documents from that Department, it could be argued that the tribunal had ensured that 12 Paragraph 155 of the tribunal’s reasons. -- 9 of 12 -- material, relevant to the issues as articulated by the parties prior to the hearing, had been disclosed to the tribunal. However counsel for the Commissioner submitted that the tribunal had not done all that it should have done to ensure all relevant evidence had been disclosed to the tribunal. Counsel submitted that the tribunal could not have been satisfied about the state of Mr Storrs’s knowledge about the Standards of Care unless evidence was called for at the hearing from the Department. [42] Neither the Commissioner nor Mr Storrs at the original hearing sought to call for any documents from the file of the Department of Communities (Child Safety Services) which might have contained information about the discussions between Mr and Mrs Storrs and staff of the Department about the prohibition against the use of corporal punishment and as to the requirements of the Standards of Care. Neither the Commissioner nor Mr Storrs called oral evidence from staff of the Department about that issue. Nevertheless, counsel for the Commissioner submitted that the tribunal had an obligation to call for further evidence or to make its own enquiries on this issue once it was apparent that there was a difference in the evidence as to Mr Storrs’s state of knowledge about the prohibition against the use of corporal punishment. [43] The Commissioner submits that the tribunal was in error in not conducting its own enquiries about the information on the Department file or in not calling oral evidence from Department to resolve the dispute in the evidence. The tribunal has the power to call witnesses to attend a hearing to give evidence or to produce documents to the tribunal on its own initiative. 13 It is not known what information was recorded on the Department file about the disputed evidence or if any departmental staff could have provided oral evidence to assist in resolving that dispute. [44] In examining the content of the obligation in section 28(3)(e) of the QCAT Act, the section should be interpreted in the context of the QCAT Act in its entirety.14 The tribunal’s obligation must be examined in the context of its overall responsibilities and objects, in particular the requirement to proceed in a manner which is accessible, fair, economical, just and quick. The obligation is couched in terms of what is practicable, not whatever is possible. [45] The tribunal must hear and decide a review application by way of a fresh hearing on the merits and must produce the correct and preferable decision. 15 The tribunal is not required by the QCAT Act to conduct an extensive investigation before reaching a decision on a review application. The maker of the decision under review has the obligation to help the tribunal so that it can make its decision on the review. 16 The tribunal was established with a registry and not with an investigations arm to independently investigate the issues between the parties. 13 Queensland Civil and Administrative Tribunal Act 2009 ss 97(1), 98(1)(a). 14 K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 60 ALR 509. 15 Queensland Civil and Administrative Tribunal Act 2009 s 20. 16 Queensland Civil and Administrative Tribunal Act 2009 s21(1). -- 10 of 12 -- [46] In the tribunal’s opinion, section 28(3)(e) of the QCAT Act must be interpreted in a manner that acknowledges a practical limit to what action the tribunal must take to ensure that all relevant facts are before it. The tribunal had clarified with the parties in August 2009 as to what issues were to be determined, had issued notices to non parties to ensure that the evidence required by the parties was available at the hearing and had directed that the parties provide to the tribunal before the hearing date all witness statements and documentation to be relied on at the hearing. The Commissioner had not called on the tribunal at any stage before its decision was made to ensure that additional material was produced from the file of the Department of Communities (Child Safety Services) in order to resolve what was disclosed in the witness statement before the hearing to be a dispute in the evidence. [47] In cases where a party is legally represented, that party is entitled to rely on the advice of their legal representative in identifying the issues to be determined and in presenting the evidence required to prove those issues. Section 28(3)(e) does not, in the opinion of the tribunal, place an obligation on the tribunal to supplement the advice of a party’s legal representative by inevitably compelling the production of evidence that has not been drawn to the attention of the tribunal by their legal representative. [48] It is not known whether any material relevant to the resolution of the disputed evidence was in fact on the Department file. It is mere speculation to suggest that relevant material other than that produced by the parties was available and should have been in the forefront of the tribunal’s mind when reaching a decision as to whether Mr Storrs’s knew of the prohibition against the use of corporal punishment in 2004. [49] When it is necessary for the tribunal to reach a conclusion on a matter of fact in order to make its determination, the tribunal must have available to it material logically probative of the existence of that fact.17 This was not a case where the tribunal reached a conclusion critical to its determination without any material available to it. The tribunal resolved the dispute on the basis of the evidence to hand. In the circumstances that was a reasonable approach. [50] The obligation in section 28(3)(e) can be discharged by the tribunal making directions to require the parties to file all relevant material and to issue notices to produce and attendance notices to ensure that relevant material on the identified issues that is not in the control of the parties is provided to the tribunal. There are some practical limits to the scope of the obligation. The tribunal is not obliged by section 28(3)(e) to ensure that material, not tendered, or even referred to, by the parties or which may not even be in existence, is sought to be obtained by the tribunal unless the tribunal forms the view that the material is critical to its being able to decide the review and that it cannot reasonably make its determination on the review without the material being available to it. The case of Commissioner for Children and Young People and Child 17 Secretary, Department of Social Security v Murphy [1998] FCA 809. -- 11 of 12 -- Guardian v Ross 18 is distinguishable as the existence of relevant evidence on the Department file was not raised at the hearing about Mr Storrs. [51] The tribunal was not in error in not seeking out material that may have, or may not have, been in existence and to which it was not alerted by the parties at the hearing as it was not in the situation of having no evidence on which to make a determination as to the disputed evidence about Mr Storrs’s knowledge of the prohibition against the use of corporal punishment. [52] The tribunal has not been satisfied by the submissions of counsel for the Commissioner in this case that the tribunal had erred in law by failing to obtain all relevant evidence before concluding that Mr Storrs had not been aware in 2004 of the Standards of Care. The obligation in section 28(3)(e) was discharged by the tribunal in that all practical action had been taken by the tribunal to ensure that all relevant material was disclosed to the tribunal to enable it to decide the proceeding with all the relevant facts. Ground (d) of the appeal is not established. [53] The tribunal concludes that the appeal should be dismissed as no error of law has been established. Dr Nigel Collings (Member): [54] I have had the advantage of reading the reasons of Ms Endicott and Judge Kingham in draft. I agree with them and with their conclusions and the order they propose. 18 [2008] QDC 82. -- 12 of 12 --