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WJ v Chief Executive Officer, Public Safety Business Agency

 

[2015] QCATA 190

CITATION:

WJ v Chief Executive Officer, Public Safety Business Agency [2015] QCATA 190

PARTIES:

WJ

(Applicant/Appellant)

v

Chief Executive Officer, Public Safety Business Agency

(Respondent)

APPLICATION NUMBER:

APL128-15

MATTER TYPE:

Appeals

HEARING DATE:

8 October 2015

HEARD AT:

Brisbane

DECISION OF:

Hon J B Thomas, Judicial Member

Ms Susann Holzberger, Member

DELIVERED ON:

30 October 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Leave is granted to the appellant to tender a testimonial from fellow students dated 26 May 2015.
  2. The application to tender police record of interview dated 19 September 2010 is refused.
  3. Leave to appeal against the decision of QCAT dated 5 March 2015 is granted.
  4. The appeal is allowed, and the decision dated 5 March 2015 is set aside.
  5. In its place it is ordered that the application of WJ for a positive notice and a blue card be granted.

CATCHWORDS:    

CHILDREN'S MATTERS – blue card –  whether "exceptional case" under s 221 – whether negative notice justified – duty to find facts consistent with existing decision in criminal proceedings – whether updated expert reports necessary – whether absence of updated expert report a relevant consideration in the circumstances–  whether unsuccessful short-term relationship a relevant consideration

APPEALS – leave to appeal – appeal against exercise of discretion – appeal from review by  QCAT Tribunal – appeal by way of rehearing on original record under QCAT Act s 147 – whether further evidence should be received on appeal – where primary Tribunal did not resolve conflicts in evidence on important issue – whether irrelevant considerations affecting reasons for judgment – need for Appeal Tribunal to reconsider facts and draw our own inferences – whether exercise of discretion miscarried   

Working with Children (Risk Management and Screening) Act 2000 (Qld) ss 5, 6, 221, 226, 360

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 3, 4, 142,147

Aldrich v Ross [2001] 2 Qd R 235, 252-253;

Fox v Percy (2003) 214 CLR 118, 128, [22]-[29];

Minister for Immigration and Ethnic Affairs v Gungor [1982] FCA 99; 42 ALR 209; 4 ALD 575 at 578, 579, 581.

Re Coldham; ex p Brideson (No 2) [1990] 170 CLR 267, 273;

Warren v Coombs (1979) 147 CLR 531, 552-553;

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Appellant in person

RESPONDENT:

Ms L McKeown for Blue Card Services Public Safety Business Agency

REASONS FOR DECISION

Proceedings and Jurisdiction

  1. [1]
    In March 2014 the appellant, WJ, applied to the Commission for Children and Young People for a positive notice and blue card. In September of that year the Deputy Chief Executive Officer of the Public Safety Business Agency rejected the application, and instead issued a “negative notice”.[1]
  2. [2]
    WJ then applied to QCAT for a review of that decision.[2]
  3. [3]
    Under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the QCAT Act”) the proceedings were by way of a fresh hearing on the merits, and the QCAT Member had all the functions of the decision maker for the reviewable decision.[3]
  4. [4]
    The QCAT Member (on 5 March 2015) decided that the original decision should be confirmed.
  5. [5]
    The present appeal is against that decision.
  6. [6]
    The appeal challenges the exercise of the discretion conferred by s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (“WWC Act”).
  7. [7]
    To the extent to which the appeal is on a question of fact or a question of mixed law and fact, leave to appeal is necessary.[4]
  8. [8]
    In as much as the determination of this appeal may depend on a conclusion that some error (whether of fact or law) must be inferred because the result is plainly unreasonable or unjust, it may be very difficult, if not impossible, to tell whether the error was one of law or fact. My initial impression on reading the material was that there is at least a reasonably arguable case that the result was wrong. That circumstance would help to attract the necessary grant of leave. However any difficulty on this score in the present case is alleviated by an appropriate concession from the CEO and the CEO’s legal representative that leave to appeal should be granted in the present case so that the matter may be fully considered.
  9. [9]
    Leave will therefore be granted.
  10. [10]
    The appeal is governed by s 147 of the QCAT Act.
  11. [11]
    A preliminary ruling is necessary in relation to whether two items of additional evidence should be received on this appeal. That question will be addressed after the issues have been stated and the evidence summarised.

Issues

  1. [12]
    WJ is a litigant in person, and had difficulty in articulating the issues that should be addressed on appeal. With responsible assistance from Ms McKeown on behalf of the respondent, a range of issues have been addressed, and I shall act on the footing that the following are the main grounds that need to be considered:
    1. a)
      Whether the evidence as a whole is not capable of sustaining a finding that this is an exceptional case in which it would not be in the best interests of children for a positive notice to issue (i.e. error in exercise of discretion under s 221(2) of the WWC Act).
    2. b)
      Whether the Tribunal attached undue weight to irrelevant considerations when considering whether the appellant’s case was an “exceptional case”;
    3. c)
      Whether the Tribunal erred by failing to consider the circumstances and nature of the appellant's assault, and failed to properly assess the evidence or make findings as to the circumstances that led up to it;
    4. d)
      Whether the Tribunal relied on irrelevant considerations, including the appellant's unsuccessful relationship with a male person, and the absence of additional expert reports; and
    5. e)
      Whether the result is plainly unjust, and whether error should thereby be inferred.
  2. [13]
    The concerns about WJ’s fitness to hold a blue card are founded on a single incident that occurred in Grafton on 19 September 2010, in which a 12-year-old girl sustained a minor injury. Its immediate aftermath was that police charged WJ with common assault on her partner (AL) and his daughter (JL). In due course in the Magistrates Court at Ballina she was acquitted of any assault on AL, but was found guilty of common assault on JL, and was directed to enter into a good behaviour bond for six months.
  3. [14]
    No other misconduct is alleged against this 48 year old woman. However, mental instability has been alleged to be a further factor that needs consideration.
  4. [15]
    In this case the application for a blue card was decided by the Deputy Chief Executive Officer of the Agency. His decision was based essentially upon the incident of 19 September 2010 in which WJ was involved. Inferences were drawn of insufficient remorse and insight, mention was made to her failure to provide references, and an ultimate inference seems to have been drawn about unacceptable risk of further similar behaviour.
  5. [16]
    In the subsequent review by the QCAT Tribunal a further issue was raised by the respondent Agency, namely the general mental health and stability of WJ, and a good deal of detail about her life between the incident and the present was adduced. On 5 March 2015 the learned Member confirmed the original decision of the agency to issue a negative notice.

Background - the Blue Card System

  1. [17]
    The WWC Act, and its predecessor, the Commission for Children and Young People and Child Guardian Act 2000 (Qld), established a scheme to screen persons who work, or wish to work with children, to ensure that they are suitable persons to do so. The main object of the Act is to promote and protect the rights, interests and well-being of children and young people in Queensland through the scheme. It involves the issue of what are commonly called “blue cards”.
  2. [18]
    To obtain a blue card an applicant needs a “positive notice”[5] to be decided by the Chief Executive.[6]
  3. [19]
    In consequence of the negative card, WJ must not apply for, start or continue any child related employment or volunteer work regulated by the WWC Act or carry on a child related business while her negative notice is current. Infringement amounts to an offence that may incur a penalty up to 5 years imprisonment or a fine of $55,000.00. She was informed by the original decision maker that “You can apply for the cancellation of your negative notice using the approved form 2 years after the date of this letter. You must not apply for the cancellation of the negative notice before that time”. Already in consequence of the negative blue card the University of Queensland has declined to permit her to continue with her Bachelor of Nursing course.
  4. [20]
    She has worked as an endorsed enrolled nurse for approximately 10 years. Some of this work has been in the children’s ward and maternity ward at Ipswich Hospital, but because of the negative blue card she would no longer be allowed to work in those wards, and she would be extremely limited in gaining permanent employment as a nurse in a hospital because hospitals accept children over 14 years of age into adult wards, and the appellant claims, (and it is not suggested otherwise by the respondent) that all hospitals now require a mandatory positive blue card as part of the application process for employment.
  5. [21]
    WJ is of the view that the negative notice will not impede her registration as a registered nurse with the relevant professional board, but it is obvious that the denial of a blue card would impose very severe limitations upon the possibility of employment in her chosen field.

Facts

  1. [22]
    WJ was born in England in 1966, the youngest of 8 children and lived in a council house. She had a hard early life. She and her future husband, WS, had 2 daughters (in 1988 and 1991), and in 1997 they migrated to Australia.
  2. [23]
    They had 2 further daughters in Australia, born in 1998 and 2000.
  3. [24]
    They separated in 2004.
  4. [25]
    In 2006 she obtained a Diploma for Enrolled Nursing, and she became an EN at the Redcliffe Hospital.
  5. [26]
    In 2007 she moved to Grafton, acquired an acreage property, and worked at the Grafton Base Hospital, and then at the Grafton Correctional Centre for a period of 5 years.
  6. [27]
    During her time at the Correctional Centre she experienced bullying from some other staff members. As a consequence, by 2009 she was suffering anxiety and occasional panic attacks. The symptoms included palpitations, weakness and increased respiratory rate.[7] The stressful work situation continued, and resulted in incidents to which she reacted very adversely in February 2011 and August 2011.
  7. [28]
    The February 2011 incident involved her being blocked by staff in a security control area called a "hole in the wall" resulting in a serious panic attack, following which she was taken by ambulance to hospital. She returned to work after three days, but in August of that year suffered a work-related major depressive disorder from which she did not return to work until February 2012. During that time she obtained psychological and counselling assistance, and psychiatric assessment.
  8. [29]
    Her condition and symptoms are adequately described in the Exhibits 3, 4 and 5, especially in the report of the specialist psychiatrist Dr Danesi.
  9. [30]
    In his report of 13 July 2012, Dr Danesi diagnosed that "In August 2011 she developed a major depressive disorder single episode, moderate severity which led to her being off work until February 2012." He considered that she had had appropriate psychological intervention and understood the nature of her panic attacks and how to manage them. He considered her condition to be stable and stationary, and that she was able to continue with full-time work as an Enrolled Nurse. His diagnosis was “major depressive disorder, in remission" and noted that there was no deficit in social functioning, concentration, pace and persistence, or employability.
  10. [31]
    She continued working, and some adjustments by her and a fellow employee to some extent ameliorated the workplace situation.
  11. [32]
    It is important to note that the incident with which we are concerned, involving AL and his daughter JL occurred in 2010 in the early stages of her workplace anxiety problems. Her condition included a vulnerability to claustrophobic reaction.
  12. [33]
    The relevant incident may be shortly described as follows.
  13. [34]
    On 19 September 2010 WJ, her partner AL, and their respective children abandoned a harrowing camping weekend at Woody Head, and returned to AL’s unit at Grafton. He perceived that she was going to leave his unit with her daughters without attempting to sort out their problems. He decided to stop her from doing this, attempted to take the battery out of her car, and then drove his vehicle to hedge her vehicle from further movement. While so blocked she caused a commotion by continuously sounding her horn, to the obvious discomfort of nearby residents. AL entered her vehicle and attempted to remove her (presumably out of reach of the horn).
  14. [35]
    There is a conflict of evidence about the nature of the personal violence and restraint that ensued between them, but it is noted that he was not charged with violence against her, and she was acquitted of any charge of violence against him.
  15. [36]
    In the course of the tussle between AL and WJ, AL’s daughter JL became involved. WJ says that while she was jostling with AL trying to get him off her car, she was hit in the back of the neck. She swung around and backhanded whoever was there. “I backhanded her in the mouth and as I’ve turned around I saw it was JL.”  She approached JL to say “I’m sorry” but AL took hold of her and put both of her arms behind her back and "slammed" her into the concrete.[8]
  16. [37]
    JL’s intervention is confirmed by the police brief which states that “she [JL] has attempted to stop the assault by grabbing hold of the accused by the back of the shoulders as the struggling pair exited the vehicle". JL was said to have screamed “stop hitting my father" at that time.[9]
  17. [38]
    A "swollen redness" was observed on JL’s chin, and WJ has never denied delivering her a single blow. Her claim that “I didn’t mean to hit her” must have been rejected by the Magistrate, at least as affording any defence of accident or unwilled act.
  18. [39]
    JL was described by WJ as a very well-built, stocky, adult sized girl, and a hockey player. That however is of doubtful relevancy if WJ did not know who it was at whom she lashed out.
  19. [40]
    Following this WJ obtained a broom, and allegedly struck AL with it several times. WJ admits threatening him with it, but denies striking, and having regard to her acquittal of any assault in relation to him, there is no reason why her version on that point should not be accepted.
  20. [41]
    WJ’s 2 children, then aged 11 and 12, saw the event from the balcony of AL’s unit. This was virtually inevitable, given that their mother was trying to leave AL’s unit with them, and AL was trying to stop them. The fact that her children saw the incident was however regarded by the learned Member as an aggravating feature in regard to WJ’s conduct. This seems a little hard when it is considered that they were necessarily involved in the attempted departure and WJ could not in the circumstances have closeted them. Their concern was in the nature of calling out to AL "Don't hurt mummy".
  21. [42]
    WJ suffered a panic attack before police arrived. Her former husband, WS, was advised, and drove immediately from Redcliffe to Grafton to take care of their daughters while police pursued their enquiries and WJ recovered from the event.
  22. [43]
    This may fairly be described as an isolated incident. There has been no other incident comparable with it throughout her life.
  23. [44]
    The essential details are that she became involved in a melee with AL in the course of which his 14 year old daughter JL intervened in aid of her father. WJ’s reaction in striking her was disproportionate to the situation.
  24. [45]
    WJ’s life and affairs since then have settled down considerably, although, as noted above, the incident was followed by further serious stress at work which threatened her mental health. However having left that somewhat poisonous work environment, and particularly since her return to Redcliffe, she has done well. In September 2012 she leased out her property in New South Wales and returned to Queensland where all of her “family and close friends live”.
  25. [46]
    She has undertaken and completed university training that entitles her to be a registered nurse. She was also keen to complete her midwifery qualification, but the issue of the negative card forced the university to deny her its completion, and she indicated to us that she may not continue to pursue that particular line.
  26. [47]
    There is some evidence about the relationships she has been in since that time. There appears to have been a short term unsuccessful relationship with a man that ended after about 18 months. She described her present relationship as stable and pleasant, but not much particularity was provided to the Tribunal on this score.
  27. [48]
    She stated that having moved to Queensland she is “finally free of the bullying” and that she works with “helpful and kind nurses”; her working environment is “pleasant and happy”; and her mental health issues have been successfully addressed.
  28. [49]
    She had counselling in the past, and was prescribed medication that she no longer needs or takes.
  29. [50]
    She was at the time of the original QCAT hearing attending university full-time and working as an agency nurse part-time. She stated “I do not feel I suffer any life stressors and I am happy and content where I am in my life right now. The incident that occurred was an unfortunate one of event in my life which I am truly sorry for. This is the only police event that has ever occurred in my 48 years of life. But I do believe it was a situational/domestic violence event and certainly was not a rational response.”[10]

Further evidence on appeal?

  1. [51]
    The respondent agency objected to the reception of two items of evidence which WJ asked to be received on this appeal.
  2. [52]
    The evidence in question consists of –
    1. a)
      A two-page document containing short tributes from WJ’s fellow nursing students dated 26 May 2015 ("Testimonial from fellow students"); and
    2. b)
      A transcript of the police record of interview of the appellant concerning the central incident of 19 September 2010 ("Police Record of Interview").
  3. [53]
    The appeal is governed by s 147 of the QCAT Act, which includes the following provision:

(2)   the appeal must be decided by way of rehearing, with or without the hearing of additional evidence as decided by the Appeal Tribunal.

  1. [54]
    That confers a seemingly wide discretion, but in a number of decisions by QCAT Tribunals it has been generally restricted to similar lines to those followed by Courts in relation to appeals by way of rehearing.[11]  Having regard to the objects of the QCAT Act (especially ss 3 and 4) I am not sure that this should always be strictly so, but I would like to hear full argument on the issue before departing from what seems to have become a generally accepted practice in QCAT Tribunals.
  2. [55]
    For the purposes of the present case I am prepared to act on the footing that the main factors are that the evidence should not be received unless-
    1. a)
      It was not reasonably available at the time of the original hearing; and
    2. b)
      It is “cogent” or otherwise necessary for a fair rehearing.[12]
  3. [56]
    So far as the testimonial from fellow students is concerned, it is perhaps surprising that it was objected too. Plainly it overcomes the first hurdle because it was not available at the time of hearing. It did not exist at that time, and the quite spontaneous occasion of its production had not arrived. The objection is curious in that WJ’s failure to bring any testimonial or character reference material seems to have been held against her by the original decision maker, who commented adversely on her failure to do so. Now that she seeks to do so, the agency objects. This must seem ironic to her, but it is an objection founded on legal grounds and must be decided on them.
  4. [57]
    The usual nature of an appeal by way of rehearing, at least in a court, is to “determine the matter on the evidence and law applicable as at the date of the curial proceedings”[13] (i.e. the date of the appeal). There is nothing in the relevant legislation to suggest that an appeal of the present kind, that is to say a s 147 appeal to this administrative Tribunal should be conducted on any different basis.[14] Accordingly in my view the present appeal is one that should be determined similarly to the approach in Courts of Appeal, that is to say on the properly receivable evidence and law applicable as at the date of the appeal.
  5. [58]
    In my understanding the occasions in which Courts of Appeal receive relevant evidence such as relevant change of circumstance or other relevant matter that is brought to the court's attention to enable the decision to speak accurately from the time of the appeal, are by no means rare. I have in a number of QCAT appeals concerning the admission or removal of registration of professional and trade practitioners admitting updated testimonials or references. Generally speaking, in appeals by way of rehearing concerning the fitness of individuals to practise, there may be considerable advantage in receiving evidence that allows the determination to be made on evidence current at the date of the rehearing. This sometimes includes the updating of current status, registrations or testimonials.
  6. [59]
    This particular document is relevant in a number of ways. It tends to support WJ’s contention that she has stabilised, and even more significantly it shows that she has done so in the company of young people. I do not suggest that testimonial evidence of this kind is necessarily “cogent” evidence, but in all the circumstances I think it is in the interests of justice that this document should be received.
  7. [60]
    The police record of interview is a 26 page document recording the police interview with WJ following the incident of 19 September 2010. That incident is the core of the respondent Agency’s case, and one might have thought that the more detail one could obtain about it the better. The Agency however objects, as it is entitled to do, to its reception on appeal. It was content to mount its case below on the Court Order Notice which records a finding of not guilty on the charge brought against her of common assault on AL and a finding of guilty of common assault with respect to JL, with an order not to proceed to finding of guilty if she entered into a s 10 good behaviour bond for 6 months. The agency also put into evidence the police brief prepared for the purpose of the prosecution. That latter document is obviously incomplete and contains a number of significant blanks. The record of interview contains the appellant’s version of the events consistently with the narrative that she gave to the Tribunal in her evidence describing the event.
  8. [61]
    Unfortunately the Magistrate’s reasons for judgment (if any) were not obtained, and the basis of his findings is a matter for inference from the quite sketchy material above.
  9. [62]
    This record of interview would have been available at the time of the QCAT hearing if requested. Further, while it is directly relevant to the issues litigated, it is difficult to say that it is sufficiently cogent to have had a significant influence on the result, although it would have enabled a fuller picture to be obtained, and it would have shown an overall consistency in WJ’s version. It is the sort of evidence that one might well have expected the Agency to have produced to the Tribunal at first instance, but it chose to rely on a selection of police materials and the Court Order Notice.
  10. [63]
    The fact that there has been a judicial determination concerning the assault on JL means that any facts inconsistent with that conviction may not now be found.[15]
  11. [64]
    In my view the finding of guilty of common assault necessarily negate any defence of accident or self-defence. The most reasonable inference is that the conviction was based on the view that there was excessive retaliation. This is equally consistent with WJ’s knowing or not knowing the identity of the person at whom she lashed out. Subject to the above, there is nothing in the conviction that should have prevented the Tribunal from canvassing the previous events leading up to the assault, or from fully assessing the conduct of WJ in the all important event on which the blue card decision was founded.
  12. [65]
    There was evidence about the event from both sides before the Tribunal, and a contest was mounted. My view is that, in the circumstances, the police record of interview would have been quite useful to the Tribunal in enabling a fuller picture to be obtained of the most important event in the case. However, as it does not meet the necessary test of unavailability at the time of the original hearing, objection is taken to its reception, and the case can be satisfactorily decided without this particular evidence, the objection will be upheld.

Discussion

  1. [66]
    The offence of which the appellant was convicted was not a “serious offence” as defined by the WWC Act. It follows that under s 221 the Chief Executive was obliged to issue a positive notice unless satisfied that it was "an exceptional case in which it would not be in the best interests of children to issue a positive notice..” (my underlining).[16]
  2. [67]
    The paramount consideration is “the welfare and best interests of a child”.[17]
  3. [68]
    The application of sections 221 and 226 has been considered in many QCAT Tribunals[18] and in the Court of Appeal.[19] In those cases, including the BWA case,[20] some relevant considerations have been mentioned concerning the characterisation of a case as an "exceptional" one under sections 221 and 226, but it is unnecessary to recount them here. A broad discretion is involved, and attempts to paraphrase or to further define it are difficult and sometimes unwise.
  4. [69]
    It may be noted that in BWA, the Commission's case for issuing a negative card was considerably stronger than the present one, but the QCAT Tribunal did not consider that the circumstances rendered the case "exceptional" for the purposes of those sections in the previous Act.[21] An error was found in the Tribunal's process necessitating its reconsideration of the case by the Appeal Tribunal. It in due course the Appeal Tribunal came to the same conclusion, namely that the case was not "exceptional" under s 221, and that a blue card should be issued.
  5. [70]
    The two features relied on to justify the necessary satisfaction under s 221 and the consequential negative notice are:
  1. (1)
    The isolated act of misbehaviour in 2010; and
  1. (2)
    “Mental health issues” which are said to be a source of future danger to the best interests of children.
  1. [71]
    The question is whether the evidence in regard to those factors make out an exceptional case for thinking that it would not be in the best interests of children for WJ to be able to come into contact with them in the course of her work.                
  2. [72]
    I foreshadow that looking at the whole of the evidence I find it difficult to find any sufficient basis for seeing this case in that light, or to see how the opportunity for her to work in the presence of children threatens the welfare of children either individually or collectively.
  3. [73]
    So far as the alleged mental instability issue is concerned, the evidence of Dr Danesi is uncontradicted. WJ made responsible attempts to overcome her work-based problems by attending counselling services[22] and by engaging in a mediation procedure which achieved some success with one of the aggressors. She also attended Mardi Dunbar (psychotherapy and counselling).[23]
  4. [74]
    Dr Danesi’s report has her stable and stationary as at 13 July 2012, and able to continue fulltime work as an enrolled nurse, with no deficits observable.
  5. [75]
    It is difficult to see the 2010 event as other than an isolated one-off incident, the experience of which has strengthened WJ’s awareness of her own vulnerability. She now knows the signs and symptoms of her panic disorder, knows to avoid or leave risk situations, and seems to have coped successfully with a range of activity.
  6. [76]
    Underlying the whole case is the question "is there any reasonable prospect of repetition of an incident like the 2010 incident?"
  7. [77]
    The starting point to answering it is a full understanding of the circumstances of that event. There is reason to think that the learned Member did not satisfactorily resolve the evidence about those circumstances. It is also necessary to consider whether any errors or misdirections are apparent in the reasons for judgment.

Arguable Misdirections

  1. [78]
    Possible misdirections appear in the following areas of the decision –
    1. a)
      Findings (or absence of findings) concerning the 2010 incident; and the  statement that “the Tribunal cannot go behind the circumstances of the offending behaviour”;[24] 
    2. b)
      Reliance (adverse to the appellant) on her temporary bad choice of a partner;
    3. c)
      Reliance (adverse to the appellant) upon her failure to produce further expert reports.

(a) Findings about the 2010 incident

  1. [79]
    The learned Member stated:

WJ does not agree with all of the circumstances of the incident as reported in the police information given to the chief executive. The Tribunal cannot go behind the circumstances of the offending behaviour.[25]

  1. [80]
    That is an obvious misstatement. It should have been to the effect "The Tribunal may, indeed must, go into the circumstances of the offending behaviour, but it cannot make findings that go behind the finding of guilty."
  2. [81]
    The learned Member then proceeded to summarise the police information and the evidence that WJ had given to the Tribunal, but made no specific findings or indication as to what evidence was preferred. Ultimately the offending behaviour was described as[26]  “serious in that it involved a physical assault on a 14 year old girl resulting in injuries to the complainant child. The offending behaviour took place in the presence of WJ’s two young children.”
  3. [82]
    These ultimate comments may readily be granted, but they are equally consistent with WJ’s evidence as with the information in the police brief.
  4. [83]
    The police brief in this case provides a shaky basis for ultimate findings. It lacks the names of the complainants, fails to identify which of them was allegedly involved at the various stages before, during and after the incident, and there are at least 19 blanks or omissions where one or other of them is alleged to have been involved. While many of these can be guessed at as referring to one or the other, it is to say the least an unsatisfying basis for reaching a realistic view of the facts.
  5. [84]
    The statement that "the Tribunal cannot go behind the circumstances of the offending behaviour" is clearly too wide a statement, but may well have been a mere error of expression. Reference may have been intended to the fact of conviction. But it would certainly be an error if, for example, it were thought  that the “circumstances of the offending behaviour” had to be taken as those outlined in the police brief, or as requiring the rejection of WJ’s version to the extent that it differed from the police brief.
  6. [85]
    The only limitation upon the Tribunal’s assessment of evidence about the events surrounding the incident is that they must be interpreted consistently with the existence of the conviction, that is to say with the necessary elements (or in the words of Fox J the “necessary ingredients”) of the offence.[27]  The exercise is to infer “the view of the facts necessarily adopted by the jury”, or, in non-jury proceedings, by the Court that has convicted the person.
  7. [86]
    Ultimately I am of the view that it is not clear from the reasons of judgment whether or not the learned Member misapplied Gungor’s case, though, as indicated above, there is an erroneous statement about its effect. But a distinct error for present purposes lies in the failure to resolve the conflicts between the police brief and the appellant's evidence, or to make findings of fact on the most important event in the case.
  8. [87]
    An appeal by way of rehearing under s 147 of the QCAT Act is not a rehearing de novo. In the usual course the Appeal Tribunal makes its own determination on the material before the primary Tribunal (supplemented, if necessary by additional evidence if permitted under s 147(2)) with due respect for the findings of fact of the primary Tribunal, and due consideration of the advantages enjoyed by it.[28] But where, as here, the primary Tribunal has failed to resolve an important conflict, and there is reason to think that irrelevant considerations were taken into account,[29] it becomes even more requisite for the Appellate Tribunal draw its own inferences of fact based on the available evidence.[30]
  9. [88]
    The conviction does not stand in the way of acceptance of WJ’s version, as it is consistent with her having struck the additional person whether or not she already knew her to be JL. WJ gave evidence to the Tribunal that she did not identify her as JL until the blow had been struck. No prior inconsistencies are suggested; the Magistrate's reasons (if any) were not produced; and there is nothing in the police brief that deals with the question whether WJ had identified the new protagonist before striking her. WJ was in a highly disturbed state at the time, and her version is not inherently incredible.
  10. [89]
    On the evidence upon which this issue was litigated it is difficult to reject WJ’s version on this point.
  11. [90]
    Another necessary finding is that JL involved herself in the scuffle, and made physical contact with WJ’s shoulders or neck before WJ reacted.
  12. [91]
    WJ’s reaction was excessive.
  13. [92]
    Another feature of the event that deserves notice is that AL’s determined physical attempt to prevent WJ and her daughters from leaving his unit, including attempted removal of her battery, and driving his own car into a position to prevent her from moving her car, was a particularly effective trigger for a serious reaction in a person prone to claustrophobia. 
  14. [93]
    While no-one would deny that WJ’s conduct was “serious”, the Magistrate's determination to proceed by way of a s 10 good behaviour bond without conviction gives at least some indication of its place in the spectrum of seriousness of such offences.

(b) Reliance on WJ’s temporary bad choice of a partner

  1. [94]
    One feature relied on by the learned Member as supporting the characterisation of the case as exceptional was “there is no independent evidence before me to support WJ’s evidence that she has a support network and she is presently in a 'healthy relationship of two years'”, and "The tribunal also has concerns about the support network that WJ says she now has in place in Queensland, particularly in light of the evidence before me including WJ’s evidence about an earlier relationship WJ had with a man that caused her distress…" [31]
  2. [95]
    The latter concern was based on evidence adduced from WJ’s former husband, WS, who mentioned a past relationship that she had had with a man that caused her distress. In my view that particular circumstance is a very dubious basis for doubting the stability of her current situation.
  3. [96]
    In his written statement WS stated “I have known WJ nearly 22 years; she was a good wife and is a good mother and role model to our four daughters and our two young grandchildren. We have never had any violence or aggression in the time we have known each other.”  He further stated, “Fay has not suffered any anxiety or panic attacks since she moved back to Redcliffe, Queensland 2 years ago".[32] 
  4. [97]
    His evidence continued that since her return to Queensland he sees her fairly regularly along with their older daughter and grandson. When asked about her mental health in recent times he described her as “fine” and “really happy at the moment”. He described her as a “strong person” said that she is a lot happier now, and that “she’s done quite well to keep on doing what she’s doing”.  Asked about her interacting with children and young people he stated that she had “always been a good mum” and she was “..great with kids. Everybody’s kids. All the people we’ve known over the years, all with kids, when the two younger ones were growing up in Western Australia we had loads of them with kids… they went everywhere. Out to concerts with the kids, swimming at the beach, it’s always been that way”.[33] 
  5. [98]
    Under cross examination he mentioned that “she met a fellow 2 years ago who turned out to be a drunk and who caused her distress."  She had told WJ that he was violent. He stated that she “got rid of him and that lot, and she’s tough”.[34]
  6. [99]
    One might naturally discount WJ’s evidence as that of a partisan in favour of his former wife, but it is inescapable that his reaction to the situation of 2010 was entirely appropriate, and some of his evidence is insightful. He certainly provides evidence over and above that of WJ of normal behaviour and conduct since her return to Brisbane.
  7. [100]
    It is difficult to see the relevance of a temporary bad choice of partner in the overall resolution of this case. The learned Member seems to have attached some importance to it.

(c) Reliance on her failure to produce further expert reports

  1. [101]
    The learned Member was concerned that no expert reports were presented to the Tribunal updating the appellant’s condition after Dr Danesi's report of 13 July 2012. However the uncontradicted evidence shows a steady improvement and absence of any recurrent problem after that time, and I do not think that the appellant was obliged to incur the expense of, or had any onus to produce, further expert reports beyond that time, or that her failure to do so ought to be held against her.
  2. [102]
    In the making of predictive decisions like these which are based on the degree of likelihood of a person reoffending or engaging in future undesirable behaviour, it is natural for a Tribunal to look for the guidance of experts. But overdependence on experts is to be avoided, especially in tribunals charged with dealing with matters in an "accessible, fair, just, economical, informal and quick" way.[35] No doubt Tribunals feel fortified when an expert report reassures them, but they are not a pre-requisite in blue card cases which must often be decided on the common sense of the Tribunal Member acting as a jury would. The present case involved relatively serious mental health issues, and some expert evidence was obviously necessary. However sufficient expert evidence was called showing what the problems were, and that WJ had overcome them to an acceptable level.
  3. [103]
    To the extent to which the learned Member regarded the appellant’s failure to produce further expert evidence in the present case as a factor adverse to a favourable decision, I think this was an error. In the absence of any evidence suggesting recurrence, Dr Danesi’s report and the appellant’s own evidence was adequate.
  4. [104]
    The learned Member also considered there was no independent evidence in support of “workplace interactions and how she manages any stress in the workplace”.[36]  Her penultimate conclusion was “the Tribunal cannot be satisfied that if WJ was again faced with a stressful workplace situation, that she has strategies in place to manage her anxiety and panic attacks and if placed in a situation of 'feeling trapped' she will therefore not reoffend”.  From that she moved to the conclusion that this was an “exceptional case for the purposes of s 221”.[37]
  5. [105]
    In the proceedings before the learned Member the Agency’s representative expressly conceded the following “protective factors”:
  1. (1)
    The applicant expressed remorse and shame for her offending.
  1. (2)
    The offending appears to have been an isolated incident.
  1. (3)
    By the applicant’s submissions, she now has a support network in place.
  1. (4)
    The applicant outlined a number of strategies she employs when feeling stressed or anxious, which may assist her in appropriately responding to stressful situations in the future.[38]
  1. [106]
    It was submitted that these were inadequate to offset the "risk factors", but in the absence of anything to suggest a further incident or mental deterioration, I do not think that WJ was bound to produce testimonials from her employers or fellow workers, or to engage further medical experts.
  2. [107]
    For the above reasons I consider that a number of misdirections are shown which were capable of affecting the result.

Conclusions

  1. [108]
    On the evidence it is impossible to see how the opportunity for WJ to work in the presence of children threatens the welfare of children either individually or collectively.
  2. [109]
    Whichever version of the incident is accepted, this is not a case where there are any sinister, sexual or inappropriate attitudes to children, or which generates any fear of child-oriented instability or danger. This woman has reared her own family, is in contact with grandchildren and no abnormality of attitude is suggested.
  3. [110]
    The prospect of repetition is of course a focal factor in a case like this. One searches the reasons for judgment of the learned Member in vain for any firm basis to support such a fear. There is nothing in the evidence to suggest any dangerous propensity, or from which to infer an unacceptable prospect of recurrence or to raise any sound basis for future fear for the welfare of a child or children.
  4. [111]
    In my view, the appeal should be allowed. I am of the view that error was involved in fact-finding process concerning the 2010 incident, and that undue weight was given to the circumstance that WJ did not update the medical evidence, or call further evidence supporting her account of the absence of current problems since her return to Brisbane. I also consider that the evidence as a whole cannot reasonably lead to a finding that this is an exceptional case in which it would not be in the best interests of children for a positive notice to issue.
  5. [112]
    I am authorised by Member Holzberger to state that she agrees with these reasons and with the orders that are proposed.

Orders

  1. Leave is granted to the appellant to tender a testimonial from fellow students dated 26 May 2015.
  1. The application to tender police record of interview dated 19 September 2010 is refused.
  1. Leave to appeal against the decision of QCAT dated 5 March 2015 is granted.
  1. The appeal is allowed, and the decision dated 5 March 2015 is set aside.
  1. In its place it is ordered that the application of WJ for a positive notice and a blue card be granted.

Footnotes

[1] Working with Children (Risk Management and Screening) Act 2000 (“the WWC Act”) s 220.

[2]  WWC Act ss 353-354.

[3]  QCAT Act ss 19(c) and 20.

[4]   QCAT Act s 142(3)(b).

[5]  WWC Act ss 220-221.

[6]  Term defined in WWC Act s 7(2).

[7]  Report of Dr Danesi (psychiatrist) 13 July 2012, Exhibit 5 page 2.

[8]  Transcript of proceedings page 33.

[9]  Police Report, PBSA 008; cf transcript of proceedings page 32.

[10]  Exhibit 1.

[11] Lamers v Attewell & Anor [2013] QCATA 136 at paras [15] and [16]; Campbell v Kerry M Ryan Pty Ltd [2013] QCATA 313 at para 6; Lindgren v Aaron Trigg Painting (No.3) [2011] QCA at paras 17, 18 and 19.

[12]  Line of decisions following Langdale v Danby (1982) 3 AER 129, 137-138, and Clark v Japan Machines (Australia) Pty Ltd 1984 1 QdR 404 at 407-408.

[13] Re Coldham; ex parte Brideson (No 2) [1990] 170 CLR 267, 273.

[14]  See Aldrich v Ross [2001] 2 QdR 235, 252-253.

[15]       Discussed further below at [84] - [86].

[16]  WWC Act s 221(1)(c) and 221(2).

[17]  WWC Act s 360; compare objects of the WWC Act in s 5 & 6.

[18] Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291; F v Public Safety Business Agency [2015] QCATA; Commissioner for Children and Young People and Child Guardian v BWA 2011 QCATA 262; Commissioner for Children and Young People and Child Guardian v Lister (No2) [2011] QCATA 87 (at [14]-[17]).

[19] Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, per Philippides J at paras 40-42.

[20]       Commissioner for Children and Young People and Child Guardian v BWA [2011] QCATA 262,(above) cited by Philippides J in Maher's Case (above); see BWA Case paras [60]-[64, [74]-[80].

[21]     Commission for Children and Young people and Child Guardian Act 2000, – in material respects not distinguishable from the present legislation.

[22]  Axis Counselling Services 7 July 2009.

[23]  Reports dated 2 May 2011, 8 August 2011 and 14 November 2011.

[24]  Member’s Reasons [11].

[25]       Ibid,

[26]  Member's Reasons [36].

[27] Minister for Immigration and Ethnic Affairs v Gungor [1982] FCA 99; 42 ALR 209; 4 ALD 575 per Fox J at 578, 579, 581 and per Shepphard J 587-588, 592-593, ("Gungor's Case").

[28] Warren v Coombs (1979) 147 CLR 531, 552-553.

[29] See below at [95] - [108].

[30] Warren v Coombs (1979) 147 CLR 531, 552-553; Fox v Percy (2003) 214 CLR 118 at [22] - [29].

[31]  Member’s reasons para 37.

[32]  Statement of Stephen Waddington dated 18 November 2014.

[33]  Transcript of hearing, pages 52, 53, 55.

[34]  Transcript of proceedings pages 59-60.

[35] QCAT Act, ss 3, 4.

[36]  Member’s reasons para 37. In this context, the admission on this appeal of the two page testimonial from Ms Waddington's fellow students provides further support for her claim of successful interaction with colleagues.

[37] Members Reasons for judgment para [38].

[38]  Respondent’s outline of submissions 20 February 2015 para 31.

Close

Editorial Notes

  • Published Case Name:

    WJ v Chief Executive Officer, Public Safety Business Agency

  • Shortened Case Name:

    WJ v Chief Executive Officer, Public Safety Business Agency

  • MNC:

    [2015] QCATA 190

  • Court:

    QCATA

  • Judge(s):

    Thomas J Member Holzberger

  • Date:

    30 Oct 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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