Director-General, Department of Justice and Attorney General v DVL
[2023] QCA 201
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- Director-General, Department of Justice and Attorney General v DVL[2023] QCA 201
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Director-General, Department of Justice and Attorney General v DVL[2023] QCA 201
Director-General, Department of Justice and Attorney General v DVL[2023] QCA 201
[2023] QCA 201
COURT OF APPEAL
BOND JA
APPLEGARTH J
KELLY J
Appeal No 7290 of 2023
QCATA No 42 of 2022
DIRECTOR-GENERAL, DEPARTMENT OF Applicant
JUSTICE AND ATTORNEY-GENERAL
v
DVL Respondent
BRISBANE
MONDAY, 16 OCTOBER 2023
JUDGMENT
BOND JA: The proceeding in this Court involves an application pursuant to s 150 of the Queensland Civil and Administrative Tribunal Act 2009 (the Act) seeking leave to appeal on a question of law from a decision made by the Appeal Tribunal of the Queensland Civil and Administrative Tribunal. The proceeding was scheduled for hearing this morning. Yesterday evening, the parties compromised the proceeding on terms which involved the respondent agreeing that the application should succeed, the appeal be allowed and the matter be remitted for reconsideration with leave to adduce additional evidence. They provided to the Court a form of consent order expressing the terms on which they had agreed to dispose of the proceeding in this Court. The respondent, by its counsel, has conceded the decision was attended by legal error.
A question arises as to whether this Court is empowered to make consent orders which effectively allow such an application and such an appeal without itself forming a view on the merits of the legal question raised by the appeal. That question has been the subject of discussion in a different legal context in Citigroup Pty Ltd v Mason (2008) 171 FCR 96 at [8] to [15] and Bradken Limited v Norcast S.ár.L (2013) 219 FCR 101 at [19] to [24]. In the present context, the Court’s view is that the fact and nature of the compromise is a consideration which is highly relevant to the question of the grant of leave pursuant to s 150 of the Act.
Further, in the event of a grant of leave, s 153 sufficiently empowers the Court to make the other orders which have been agreed, they being orders which the Court concludes are appropriate in light of the fact and nature of the compromise which has been reached. There does not appear to be any warrant in the Act to conclude that the powers of this Court under those sections can never be exercised unless the Court has been persuaded to form the view that the decision the subject of the application is the result of some legal error. The Court records that it expresses no view one way or the other on the merits of the question of law raised by the application or on whether it would have granted leave to appeal had there been no compromise and the application had proceeded to be fully argued.
Accordingly, the Court would make the following orders by consent of the parties:
- 1.Leave to appeal granted.
- 2.Appeal allowed.
- 3.The decision of the tribunal (Judicial Member McGill SC) dated 19 May 2023 is set aside.
- 4.Pursuant to s 153(2) and s 153(3) of the Queensland Civil and Administrative Tribunal Act 2009, the matter is returned to the tribunal for reconsideration, with directions that:
- a.the parties have leave to adduce additional evidence; and
- b.the tribunal need not be constituted by the same member who constituted the tribunal when the decision was made.
- 5.No order as to costs.
APPLEGARTH J: I agree.
KELLY J: I agree.
BOND JA: Accordingly, the Court makes the orders that I announced.