Commissioner for Children and Young People and Child Guardian v Lister [2010] QCATA 61

CITATION: Commissioner for Children and Young People and Child Guardian v Lister [2010] QCATA 61 PARTIES: Commissioner for Children and Young People and Child Guardian (Applicant/Appellant) v Susan Beryl Lister (Respondent) APPLICATION NUMBER: APL258-10 MATTER TYPE: Appeal HEARING DATE: 20 October 2010 HEARD AT: Brisbane DECISION OF: Judge Fleur Kingham, Deputy President DELIVERED ON: 20 October 2010 DELIVERED AT: Brisbane ORDERS MADE: 1. The Commissioner has leave to appear in these proceedings through an employee who is an Australian legal practitioner or government legal officer. 2. Ms Lister has leave to be legally represented in these proceedings, should she wish to be. 3. to the extent that it is required, compliance with procedural requirements for making the application to stay the decision is waived. 4. The decision of the Tribunal in application number CRS002-06 made on 23 August 2010 is stayed until 5pm Wednesday 27 October 2010 or further order. 5. The Commissioner is directed to provide Ms Lister with a copy of the written submissions tendered today as soon as is practicable by facsimile or email as well as by post. -- 1 of 5 -- 2 CATCHWORDS : APPEAL – APPLICATION TO STAY DECISION SUBJECT TO APPEAL – interim order – where application to stay brought on at short notice to respondent – where respondent unable to attend hearing – where hearing of application to stay set down before Appeal Tribunal within a short time – whether interim stay should be granted American Cyanamid Co v Ethicon Ltd [1975] AC 396, followed Commission for Children and Young People and Child Guardian Act 2000 s 155 Queensland Civil and Administrative Tribunal Act 2009 ss 43(2)(3), 61(1)(c), 126, 127, 145(2),(3) & (4) Queensland Civil and Administrative Tribunal Rules 2009 Rule 53(2) APPEARANCES and REPRESENTATION (if any): APPLICANT : Mr Capper for the Commissioner RESPONDENT: No appearance REASONS FOR DECISION [1] These proceedings raise questions of law about the decision of the Tribunal and the reasons given for it, on Ms Lister’s application to review the Commissioner’s decision to issue a negative notice under the Commission for Children and Young People and Child Guardian Act 2000 (the CCYPCG Act). A positive notice under that Act is required to work in certain occupations or to fulfil certain duties, broadly described as child related. [2] The Commissioner filed an application to stay that decision before she had commenced the appeal. At that time, the decision had taken effect 1 . The Commissioner had requested but not received a transcript of the oral reasons given when the decision was announced but the Commissioner was, then, bound by the decision but was not in a position to decide whether she should appeal it 2 . [3] A party may make an application to stay a decision being appealed until the appeal is decided 3 . At the time the application for a stay was filed, the appeal had not commenced. However, the appeal was filed shortly afterwards. To the extent that it is required, compliance with any 1 Queensland Civil and Administrative Tribunal Act 2009 s 127 2 Queensland Civil and Administrative Tribunal Act 2009 s 126 3 Queensland Civil and Administrative Tribunal Act 2009 s 145(2),(3) -- 2 of 5 -- 3 procedural requirement under s 145 is waived 4 and the application for stay is accepted as a valid application under s 145(3). [4] Ms Lister had very short notice of today’s hearing: in the order of 24 hours notice given by this Tribunal. Ms Lister was made aware that orders might be made today but was unable to participate. She has notice that a further hearing of the application to stay the decision will take place on Wednesday 27 October 2010 at 2pm. Ms Lister has informed the Tribunal that she will be able to participate in that hearing. [5] This appeal raises questions of importance about the application of a screening process for child related employment which has, as its paramount consideration, the safety and well being of children 5 . The Appeal Tribunal’s decision on this appeal is likely to have implications for other reviews of decisions of the Commissioner and, indeed, may provide guidance to the Commissioner in performing her functions under the CCYPCG Act. Also the outcome of these proceedings may have implications for Ms Lister’s future employment. [6] The Commissioner sought leave to appear in the proceedings through an employed legal officer. Given the nature of the appeal and the implications of its outcome, it is appropriate the Appeal Tribunal grant the Commissioner leave to appear through its legal officer 6 . [7] Ms Lister has not yet requested leave to be represented by a lawyer. However, I grant that leave should she wish to be so represented 7 . [8] The Commissioner sought an interim order staying the decision under appeal until the Appeal Tribunal is convened to hear full argument on the stay application. As the Tribunal has been constituted, the Tribunal’s power to grant a stay, even for a short period, may only be exercised by the panel 8 or by a judicial member9 . [9] In deciding to grant the order requested I have considered whether there is sufficient need for an interim order and if so, how long that order should apply, in the interests of justice. [10] I have been persuaded the balance of convenience, favours the grant of an interim stay 10 . [11] The grounds of appeal raise questions of substance, and do not appear to be either frivolous or vexatious. I have not examined the Commissioner’s prospects of success, although that will be an important 4 Queensland Civil and Administrative Tribunal Act 2009 s 61(1)(c) 5 Commission for Children and Young People and Child Guardian Act 2000 s 155 6 Queensland Civil and Administrative Tribunal Rules 2009 Rule 53(2) 7 Queensland Civil and Administrative Tribunal Act 2009 s 43(2)(3) 8 The Tribunal for the appeal will be constituted by a 3 person panel comprising Ms Gwenn Murray, Dr Nigel Collins and me 9 Queensland Civil and Administrative Tribunal Act 2009 s 145(4) 10 American Cyanamid Co v Ethicon Ltd [1975] AC 396 -- 3 of 5 -- 4 consideration at the next hearing. Rather, I have considered whether the grounds reveal serious matters for the Tribunal’s consideration. They clearly do. [12] Although Ms Lister has the benefit of an order of the Tribunal in her favour, these proceedings involve matters of public interest which do not normally apply in a suit between civil litigants. The decision appealed is one made in the context of a protective regulatory regime. In such cases, matters of public interest assume greater prominence. [13] In effect the status quo is that Ms Lister appears to have been employed without the benefit of the positive notice, which she has been without since 6 November 2006. In the decision under appeal it is noted that Ms Lister has worked for some time in the disability sector caring for adults. [14] Mr Capper, for the Commissioner, advised the Tribunal that it was his understanding that Ms Lister continues to be employed in that capacity and that her current employer wants to expand the scope of her duties to incorporate children. [15] On the information available to the Tribunal today, then, it seems that Ms Lister’s employment will not be put further at risk by an order of very limited duration. Against that, without an order the Commissioner is under a positive obligation to comply with the Tribunal’s decision and must issue a positive notice. I am satisfied there is sufficient need, therefore, for an interim stay of the Tribunal’s decision. [16] I accept Ms Lister has not had a proper opportunity to put her case in response to the Commissioner’s application for a stay, although she did have notice of this application. Bearing that in mind, a further hearing has been scheduled at the earliest date that was convenient to both parties and to the Tribunal panel members. That is only seven days from today. It would not be unjust, in the circumstances, for the Tribunal’s decision to be stayed for that limited period. [17] In conclusion, the interim stay should not be regarded by either party as an indication of the likely outcome of the Commissioner’s application at next week’s hearing. The Appeal Tribunal panel will be constituted in full, proper consideration can be given to matters not considered today, including the Commissioner’s prospects of succeeding in the appeal. The Appeal Tribunal will also, then, have the benefit of argument by or on behalf of both parties. [18] I order: 1. The Commissioner has leave to appear in these proceedings through an employee who is an Australian legal practitioner or government legal officer. 2. Ms Lister has leave to be legally represented in these proceedings, should she wish to be. -- 4 of 5 -- 5 3. To the extent that it is required, compliance with procedural requirements for making the application to stay the decision is waived. 4. The decision of the Tribunal in application number CRS002-06 made on 23 August 2010 is stayed until 5pm Wednesday 27 October 2010 or further order. 5. The Commissioner is directed to provide Ms Lister with a copy of the written submissions tendered today as soon as is practicable by facsimile or email as well as by post. -- 5 of 5 --