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Mills v Department of Education and Training[2017] QCAT 123

Mills v Department of Education and Training[2017] QCAT 123

CITATION:

Mills v Department of Education and Training [2017] QCAT 123

PARTIES:

Jeffrey Ian Mills

(Applicant)

v

Department of Education and Training

(Respondent)

APPLICATION NUMBER:

GAR015-16

MATTER TYPE:

General administrative review matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane 

DECISION OF:

Member Hughes

DELIVERED ON:

7 April 2017

DELIVERED AT:

Brisbane 

ORDERS MADE:

  1. The application for review is dismissed as lacking in substance.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL - where application to summarily dismiss - where Chief Executive’s delegate prohibited parent from entering school under Education (General Provisions) Act 2006 (Qld) for 60 days – where 60 day period lapsed -whether review decision of Tribunal would have any utility – where best review outcome for applicant would allow applicant to enter school for lawful purpose but could not address applicant’s other concerns – where applicant can already enter school for lawful purpose – where Tribunal Order would have no practical benefit 

Education (General Provisions) Act 2006 (Qld), ss 337, 339, 340, 340A, 341, 390, 391, 392, 393, 394

Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 19, 24, 47

General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125

TDG v Department of Communities (Child Safety Services) [2011] QCAT 46

APPEARANCES:

 This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

What is this Application about?

  1. [1]
    The Chief Executive of the Department of Education and Training can prohibit persons who they reasonably believe are disruptive, from entering a school for up to 60 days.[1] 
  2. [2]
    The Chief Executive’s delegate prohibited Mr Jeffrey Mills from entering a school attended by Mr Mills’ daughter for 60 days from 12 November 2015.[2]
  3. [3]
    On 16 December 2015, Mr Mills applied to the Chief Executive to internally review the prohibition.[3]
  4. [4]
    On 16 March 2016, the Chief Executive confirmed the prohibition.[4]   
  5. [5]
    On 13 April 2016, Mr Mills applied to the Tribunal to review the Chief Executive’s decision.
  6. [6]
    On 1 December 2016, the Chief Executive applied to the Tribunal to dismiss Mr Mills’ application because it lacks substance.

Would a decision of the Tribunal have any utility?

  1. [7]
    The Tribunal is unable to identify any utility in deciding Mr Mills’ application for review. The original decision leading to the internal review no longer has any effect. The 60 day period prohibiting him from entering the school has lapsed. Mr Mills can come and go at the school for a lawful purpose, like any other member of the community - although this would appear unlikely given he no longer has any children enrolled at the school. 
  2. [8]
    A decision favourable to Mr Mills would also not extend to updating the Department’s records with the outcome. This is because in a review application, the Tribunal can only decide the application in accordance with the enabling Act[5] and confirm or amend the original decision, set aside the decision and substitute its own decision or set aside the decision and return it to the original decision-maker for reconsideration.[6] The Tribunal does not have jurisdiction to order the Chief Executive to update its records.[7]
  3. [9]
    Mr Mills submitted that he is not seeking to amend the record but rather have the original decision overturned so that “the record” will include both the original decision and the independent review decision.[8] However, it would appear that neither the record of the prohibition, nor a favourable review of the prohibition, alters the rights and obligations between Mr Mills and the Chief Executive – even in the future.
  4. [10]
    Certainly, as between the parties, the Chief Executive or their delegate has powers to prohibit Mr Mills’ access to schools or make a direction about their conduct or movement.[9] However, exercising these powers merely requires a ‘reasonable belief’[10] about a state of affairs. The Chief Executive submitted that no ongoing (my emphasis) adverse finding has been made against Mr Mills.[11] This would suggest that any recording of a previous prohibition by the Chief Executive, or its review by Mr Mills does not alter the exercise of prohibition powers by the Chief Executive on a future occasion.
  5. [11]
    Rather, the current prohibition is merely a record of a ‘reasonable belief’ claimed to have been held by a person at one point in time and is not to be used as a basis for any future prohibition. Similarly, a decision by the Tribunal to overturn the prohibition upon review could not prevent a future prohibition based on a reasonable belief in the future. 
  6. [12]
    The best possible outcome for Mr Mills in any review would be for the Tribunal to overturn the 60 day prohibition, meaning he would be free to enter the school – nothing more. A Tribunal Order could not address Mr Mills’ allegations of misuse of information by the Department,[12] because that is not within the Tribunal’s review jurisdiction.
  7. [13]
    Because the 60 days lapsed in January 2016, Mr Mills is already able to enter the school for a lawful purpose. An Order of the Tribunal would make no difference to the rights and obligations between Mr Mills and the Chief Executive.
  8. [14]
    It would be an unnecessary incursion upon the time and resources of the parties and the Tribunal to continue an application where any Order of the Tribunal would not have any practical benefit for Mr Mills.
  9. [15]
    I therefore find that a decision of the Tribunal would not have any utility for Mr Mills.

Can the Tribunal stay a decision to prohibit access?

  1. [16]
    The Tribunal notes that the review provisions in the Education (General Provisions) Act 2006 (Qld) allow 30 school days for a person to apply for internal review of a decision,[13] and allow the Chief Executive 40 school days to internally review the decision.[14]
  2. [17]
    This means that the review process itself[15] can take longer than the effect of a decision to prohibit entry for up to 60 days,[16] potentially rendering review futile – as has occurred here. To ensure the efficacy of the review provisions as intended by Parliament, the Tribunal observes that it might be appropriate for a legislative amendment to allow the Tribunal to grant a stay of a decision to prohibit entry, pending internal review. 

Conclusion

  1. [18]
    The Courts have traditionally exercised the summary jurisdiction to dismiss claims with caution. However, the jurisdiction will be exercised in cases where the proceedings are futile:

… great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of the opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff’s claim.[17]

  1. [19]
    Because the Chief Executive’s decision no longer has any effect and the ongoing use of the Tribunal’s resources would have no utility, the application is dismissed as lacking in substance.[18]

Footnotes

[1] Education (General Provisions) Act 2006 (Qld), ss 340, 340A.

[2] Letter Gregory Dickman, Regional Director to Jeffrey Mills dated 12 November 2015.

[3] Letter Jeff Mills to Director-General, Department of Education and Training dated 16 December 2015.

[4] Letter Jim Watterson, Director-General, Department of Education and Training to Jeffrey Mills dated 16 March 2016.

[5] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19.

[6] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24.

[7] TDG v Department of Communities (Child Safety Services) [2011] QCAT 46 at [7].

[8] Applicant’s Submissions dated 31 January 2017 at [8].

[9] Education (General Provisions) Act 2006 (Qld), ss 337, 339, 340, 340A, 341.

[10] The Act’s language varies: ‘reasonably satisfied’ (ss 337, 340, 341), ‘reasonably suspects’ (s 339) and ‘reasonably believes’ (s 340A).

[11] Respondent’s Submissions dated 1 December 2016 at [39], [40].

[12] Applicant’s Submissions dated 31 January 2017 at [7], [47].

[13] Education (General Provisions) Act 2006 (Qld), s 391.

[14] Education (General Provisions) Act 2006 (Qld), s 392.

[15] Education (General Provisions) Act 2006 (Qld), ss 390 to 394.

[16] Applicant’s Submissions dated 31 January 2017 at [5], [52].

[17] General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125, per Barwick CJ at [10].

[18] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47.

Close

Editorial Notes

  • Published Case Name:

    Jeffrey Ian Mills v Department of Education and Training

  • Shortened Case Name:

    Mills v Department of Education and Training

  • MNC:

    [2017] QCAT 123

  • Court:

    QCAT

  • Judge(s):

    Member Hughes

  • Date:

    07 Apr 2017

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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