Commissioner for Children and Young People and Child Guardian v FGC [2010] QCATA 95

CITATION: Commissioner for Children and Young People and Child Guardian v FGC [2010] QCATA 95 APPELLANT: Commissioner for Children and Young People and Child Guardian (Applicant/Appellant) v RESPONDENT: FGC (Respondent) APPLICATION NUMBER: APL230-10 MATTER TYPE: Appeals HEARING DATE: 8 December 2010 HEARD AT: Brisbane DECISION OF: Justice Wilson, President Clare Endicott, Senior Member DELIVERED ON: 9 December 2010 DELIVERED AT: Brisbane ORDERS MADE: Application for stay refused CATCHWORDS : APPEAL – STAY OF DECISION PENDING APPEAL – RELEVANT FACTORS – whether stay should be granted in appeal under Commissioner for Children and Young People and Child Guardian Act 2000 – where offending happened many years earlier – where respondent had been working with children and young persons for many years without complaint Queensland Civil and Administrative Tribunal Act 2009, s 145 Commissioner for Children and Young People and Child Guardian Act 2000 APPEARANCES and REPRESENTATION (if any): APPLICANT : Commissioner for Children and Young People and Child Guardian represented by Craig Capper of Counsel RESPONDENT: FGC represented by Robertson O’Gorman, solicitors -- 1 of 4 -- 2 APPEARANCES and REPRESENTATION (if any): The hearing took place on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION President: [1] In this matter the Appeal Tribunal is comprised of Senior Member Clare Endicott, and me. I have had the advantage of reading her reasons in draft. I agree with them, and with the order she proposes. Senior Member Clare Endicott: [2] On 6 July 2010 the tribunal made a decision that a positive notice (blue card) be issued forthwith under section 221 of the Commissioner for Children and Young People and Child Guardian Act 2000 to FGC. [3] The Commissioner has commenced an appeal against that decision and has also applied for a stay of the operation of the tribunal’s decision until the appeal has been determined. The stay application is opposed by FGC. [4] Under section 145(1) of the QCAT Act the commencement of an appeal does not itself affect the operation of the decision under appeal, but section 145(2) of the Act does empower the tribunal to make an order staying the operation of the decision. The Act is silent as to what factors the tribunal should take into account when determining whether to grant a stay. [5] Case law has established that an applicant to the tribunal for a stay of a decision pending the outcome of an appeal does not have to satisfy the tribunal that special or exceptional circumstances exist to warrant the imposition of a stay.1 Nevertheless an applicant for a stay must demonstrate a reason or an appropriate case to warrant the exercise of discretion to grant the stay when to do so would prevent, at least temporarily, the successful party at the original hearing from enjoying the immediate benefit of the decision made in his favour by the tribunal. 2 [6] In the absence of a demonstrated appropriate case for a stay, mere argument or speculation will not be enough to convince the tribunal to exercise its discretion in favour of the applicant for a stay. 3 [7] The Queensland Court of Appeal in 2008 acknowledged that it is not appropriate to grant a stay unless a sufficient basis is shown, as original 1 Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685, Powerflex Services Pty Ltd & Ors v Data Access Corp (1996) FCA 460. 2 Alexander v Cambridge Credit Corporation Ltd op cit. 3 Re Middle Harbour Investments Limited (in liquidation) NSW Court of Appeal 15 December 1976. -- 2 of 4 -- 3 decisions should not be treated as merely provisional, and as a successful party is entitled to the fruits of the original decision.4 The Court of Appeal recognised that generally speaking, courts (and tribunals) should not be disposed to delay the enforcement of their orders. [8] The Court of Appeal stated that the fundamental justification for granting a stay pending appeal is to ensure that the orders which might ultimately be made are fully effective. The Court of Appeal further stated that the power to grant a stay should not be exercised merely because immediate compliance with the original decision is inconvenient for the party which had been unsuccessful in the original hearing. [9] It is submitted by the Commissioner that if FGC is issued with a blue card he will have uninhibited access to children in child-related employment or business and he would be in a position to build relationships of trust with children and young people. The Commissioner contends that the serious allegations of a sexual nature levelled against FGC were made about an earlier time when he had occupied a position of significant authority and trust. [10] Those submissions are validly made but acceptance of them does not inevitably lead to the conclusion argued by the Commissioner that a stay of the decision to issue a blue card is necessary to preserve the subject matter of the proceedings and to ensure that the orders which might be ultimately made by the tribunal are fully effective. In the event that the appeal results in an order that the issuing of the blue card is set aside, the appeal decision will have full effect in preventing FGC from undertaking work in child-related employment. The tribunal is not convinced that the absence of a stay will render nugatory a successful appeal outcome. [11] The Commissioner submits that the tribunal must have regard to the protective nature of the Commissioner for Children and Young People and Child Guardian Act 2000 to ensure that children remain protected while an appeal is undertaken and that a stay is necessary to ensure that the welfare and best interests of children are maintained pending the determination of the appeal. In considering this submission the tribunal has taken into account the fact that FGC had a blue card (or equivalent) from 24 January 2002 to 18 January 2010. During that period of time FGC had not demonstrated conduct that had given rise to a risk to the welfare and best interests of children. The allegations on which the Commissioner relies in refusing a blue card relate to conduct between 1981 and 1983. [12] This submission by the Commissioner in those circumstances relies on mere argument or speculation unsupported by evidence and is not sufficient to convince the tribunal that an appropriate reason exists to warrant a stay of the original decision of the tribunal reached after consideration of all the evidence presented at a hearing. 4 Cook’s Construction P/L v Stork Food Systems Aust Pty Ltd [2008] QCA 322. -- 3 of 4 -- 4 [13] The Commissioner submits that her appeal raises significant legal questions. She submits that the likelihood of success of her appeal is a matter for consideration by the tribunal when determining the stay application. She submits that it is a relevant factor for the tribunal’s consideration that her appeal is not without merit or frivolous in nature. [14] While accepting that submission, the acknowledgment that an appeal is not without merit or is not frivolous does not take the tribunal’s consideration any further than an acknowledgment that the appeal is arguable. It is merely one factor together with other factors that can operate in favour of the tribunal’s discretion being exercised when granting a stay. The existence of an arguable ground for an appeal without other reasons supporting the granting of a stay is unlikely to result in a stay being granted. [15] The Commissioner submits on a balance of convenience context that FGC will suffer no appreciable loss as a result of the tribunal granting a stay beyond an inability to enjoy the convenience of being able to recommence in regulated employment. This is a rather bold submission given that the whole purpose of holding a blue card is to enable FGC to work in child related employment. The tribunal rejects that submission. [16] Finally the Commissioner submits that the public interest requires the grant of a stay of the operation of the orders to ensure the maintenance of the safety, welfare and best interests of children pending the determination of the appeal. For the reasons set out in paragraphs 11 and 12, this submission is mere argument and speculation and does not address the actual facts underlying this matter. [17] In Cook’s Construction P/L v Stork Food Systems Aust Pty Ltd5 the Court of Appeal stressed that it would not be appropriate to grant a stay unless a sufficient basis is shown to outweigh the considerations that decisions of the trial court should not be treated as merely provisional. The tribunal considers that it is in the public interest that a decision of the tribunal, made after a full hearing of the evidence and after rigorous testing of that evidence by the parties, should not be treated as merely provisional. [18] Generally speaking parties to a proceeding should have confidence that the tribunal process can deliver reliable outcomes that are fair, just, and economical. The Commissioner has not demonstrated a reason or an appropriate case to warrant the exercise of discretion to grant the stay when to do so would prevent, at least temporarily, the successful party at the original hearing from enjoying the immediate benefit of the decision made in his favour by the tribunal. [19] The stay sought by the Commissioner should, in these circumstances, be refused. 5 Ibid at footnote 4. -- 4 of 4 --