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PPA v Director-General, Department of Justice and Attorney-General[2022] QCAT 166

PPA v Director-General, Department of Justice and Attorney-General[2022] QCAT 166

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

PPA v Director-General, Department of Justice and Attorney-General [2022] QCAT 166

PARTIES:

PPA

(applicant)

 

v

 

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO/S:

CML415-20

MATTER TYPE:

Childrens matters

DELIVERED ON:

19 April 2022

HEARING DATE:

14 February 2022

HEARD AT:

Brisbane

DECISION OF:

Member Goodman

ORDERS:

  1. The decision of the Director General, Department of Justice and Attorney-General that the applicant’s case is an exceptional one within the meaning of s 221 of the Working with Children (Risk Management Screening) Act 2000 (Qld) is set aside and replaced with the Tribunal’s decision that the applicant’s case is not an exceptional case.
  2. Pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the Tribunal prohibits the publication of any information that could lead to the identification of the applicant or any complainants, and accordingly, these reasons have been deidentified.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – Blue card – where applicant issued with negative notice following not guilty finding on criminal charges – whether exceptional case

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 66

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 6, s 221, s 226, s 360, Schedule 2

Schedule 4 Human Rights Act 2019 (Qld), s 13, s 24, s 26, s 31, s 34, s 58

Chief Executive Officer, Department for Child Protection v Scott (No 2) (2008) WASCA 171

Commissioner for Children and Young People v Maher & Anor [2004] QCA 492 RE FAA [2006] QCST 15

CTA v Director-General, Department of Justice and Attorney-General [2021] QCAT 442

DBC v Director-General, Department of Justice and Attorney-General [2021] QCAT 21

TNC V Public Safety Business Agency [2015] QCAT 489

Volkers v Commission for Children and Young People and Child Guardian [2010] QCAT 243

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

APPEARANCES & REPRESENTATION:

 

Applicant:

Mr Kurz, solicitor of Robertson O'Gorman Solicitors

Respondent:

Ms Sanders

REASONS FOR DECISION

  1. [1]
    PPA owns a business which includes the sale of firearms. His evidence is that he is properly licenced to carry out that business and has been assessed to be a “fit and proper person” to engage in the sale of firearms. He has applied for a Blue Card so that he is able to deliver firearms safety courses to children.
  2. [2]
    In 2007, PPA was charged with a number of offences involving allegations of sexual violence. After two complainants made allegations to police, PPA was charged with offences against Person 1 (17 years of age at the time), and Person 2 (25 years of age at the time). The charges relating to allegations raised by Person 1 were discontinued and did not proceed to trial. The charges relating to allegations raised by Person 2 did proceed to a jury trial, and PPA was found not guilty on all charges.
  3. [3]
    PPA’s application for a Blue Card was refused, and a negative notice issued by the respondent on 14 September 2020. He has applied to this Tribunal for a review of that decision.
  4. [4]
    Under the Working with Children (Risk Management and Screening) Act 2000 (Qld), the paramount consideration for the Tribunal is the welfare and best interests of children, as every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[1]
  5. [5]
    As PPA does not have a conviction for a “serious offence” as that term is defined in the legislation, a positive notice and Blue Card must issue unless the Tribunal is satisfied that this is an exceptional case in which it would not be in the best interests of children for PPA to be issued with a positive notice.[2]
  6. [6]
    The Act sets out matters which the Tribunal must take into account in making that determination[3], but this is not an exhaustive list.
  7. [7]
    This is a fresh hearing on the merits, not an appeal, and the Tribunal must determine the correct and preferable decision. Neither party bears an onus of proof. The Tribunal must determine, on the balance of probabilities, whether this is an exceptional case in which it would not be in the best interests of children for PPA to be issued with a positive notice.
  8. [8]
    The Tribunal has been provided with detailed statements and transcripts outlining with great particularity the allegations made by both Persons. Without the benefit of oral evidence from them, I have read and taken those documents into account. The allegations are well known to the parties and it is not necessary to restate them here at length.
  9. [9]
    In relation to the allegations of Person 1, she claims that:
    1. (a)
      She knew PPA, who invited her to his home to watch a movie on 3 December 2006;
    2. (b)
      Upon arrival, they watched a movie in his bedroom. While lying down, PPA sat on her back and forced her to roll over and fondled her before trying to undo the button and the zip on her shorts;
    3. (c)
      She objected and PPA eventually stopped what he was doing and shortly after drove her home.
  10. [10]
    In response, PPA says that he watched a movie with Person 1 in his bedroom and then drove her home. He says that the bedroom door was open, there were other people in the adjoining rooms, and there was no attempt by him to have any sexual or intimate interactions with her.
  11. [11]
    PPA was charged with offences against Person 1 but those charges were discontinued and did not proceed to trial. I note that Person 1 had indicated to police that PPA had sent her sexually explicit text messages and a naked photo. PPA denies that he did, and there is no independent evidence available to the Tribunal of the existence of those messages.
  12. [12]
    In relation to Person 2, she claims that:
    1. (a)
      She knew PPA and invited him (along with a group of people) back to her place after work on 4 February 2007. Person 2 and PPA worked for the same employer;
    2. (b)
      At her home, PPA engaged in unwanted sexual contact with her in the spa when others were around; and
    3. (c)
      Later, PPA came into her bedroom while she was sleeping and sexually assaulted her over an extended period.
  13. [13]
    I have been provided with confidential medical reports which have had the doctor’s names removed. The reports show that Person 2 consulted general practitioners on 9 February 2007, 20 February 2007, and 10 May 2007. The details of the 9 February consultation are unknown. A doctor records that on 20 February and 10 May, Person 2 informed them of the alleged sexual assault, and they discussed how the alleged incident has affected her mentally, and what support was available to her.
  14. [14]
    On 10 February 2007, Person 2 presented to the local hospital and was examined.
  15. [15]
    On 12 February 2007, Person 2 presented to a medical clinic “with a history of sexual assault on the proceeding Saturday”. She was examined by a doctor and who found that “the injuries I saw were consistent with the history given.”
  16. [16]
    In response, PPA says that he engaged in consensual sexual activity with Person 2 in the spa and that she invited him to her bedroom where they engaged in further consensual sexual activity.
  17. [17]
    PPA was charged with offences against Person 2. Those charges proceeded to a jury trial on 6 May 2008. Both Person 2 and PPA gave evidence and were subject to cross examination. At the conclusion of the trial, PPA was found not guilty on all charges.
  18. [18]
    On 19 March 2007, both Person 1 and Person 2 applied for Violence Restraining Orders naming PPA as the respondent. Both were granted on an interim basis without notice to PPA. On 26 June 2007, Person 2 alleged to police that the VRO had been breached, and PPA was charged with a contravention of the order.
  19. [19]
    The contravention charge related to PPA entering a workplace of Person 2 to purchase items. The police alleged that PPA was aware that he had entered Person 2’s workplace, which was in breach of the conditions of the VRO. PPA states that there were two businesses premises in the town selling the same items with the same owner, but he was unaware of that at the time. He says that he avoided the business premises where he knew that Person 2 worked but did not realise that she also sometimes worked in the other business premises. On 22 February 2008, PPA was acquitted of charges of contravention of the order.
  20. [20]
    Ultimately, both interim VROs were revoked, and the substantive applications dismissed. I note that a further application for a VRO was made by a third person at around the same time. That application was dismissed almost immediately and is not a matter I have taken into account in this decision.
  21. [21]
    In determining whether these circumstances establish an “exceptional case in which it would not be in the best interests of children” for PPA to be issued with a positive notice, I must take into account, in relation to the commission, or alleged commission, of the offences:
    1. (a)
      whether there is a conviction or a charge;
    2. (b)
      whether the offence is a serious offence and, if it is, whether it is a disqualifying offence;
    3. (c)
      when the offence was committed or is alleged to have been committed;
    4. (d)
      the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and
    5. (e)
      anything else relating to the commission, or alleged commission, of the offence that the chief executive reasonably considers to be relevant to the assessment of the person.
  22. [22]
    As noted above, this list is not exhaustive.
  23. [23]
    Accordingly, I note that:
    1. (a)
      There is no conviction, but there are charges – four charges of indecent assault, seven charges of sexual penetration without consent, one charge of attempted sexual penetration without consent, and one charge of breach of a violence restraining order;
    2. (b)
      The offences which PPA was charged with are serious or disqualifying offences, albeit dealt with outside of Queensland;
    3. (c)
      The offences were said to have occurred in 2006 and 2007. There is no evidence of any subsequent complaints to police;
    4. (d)
      The offences, as alleged, involved physically overcoming two women to engage or attempt to engage in sexual intercourse with them against their will. The offences, as alleged, are highly relevant to consideration of the issue of a positive notice as they are said to display behaviour of PPA’s part which is violent and abhorrent; and
    5. (e)
      I consider the issue of the VROs, and alleged breaches, relevant to consideration of this matter. If it was established that PPA engaged in violence against or intimidation of the two complainants, that would be a matter of great concern to this Tribunal.
  24. [24]
    The respondent submits that an exceptional case is established if the Tribunal finds that there is a “possibility of a risk to children”. The authority for that proposition is said to be the previous Tribunal case of TNC.[4]
  25. [25]
    The respondent submits that in TNC the Tribunal found “it was sufficient for the decision-maker to be satisfied “that the circumstances raise the possibility of a risk to children” and in making that assessment of risk, the totality of the evidence was to be considered, not merely the charges”.
  26. [26]
    In TNC, a sporting coach had been charged in another state with sexual offences against three complainants, including two children. The offences were said to have occurred while he held the position of coach of the complainants. Due to his high profile, and the desirability of being coached by him, he held a considerable position of power over the players. TNC was not convicted of any of the charges. He subsequently moved to Queensland with his wife, where they set up a coaching centre. TNC did not apply for a Blue Card in Queensland for some months and had not checked that his employees held Blue Cards. 
  27. [27]
    The Tribunal noted that a lack of conviction did not prove that the allegations were false, or that TNC was innocent. The Tribunal noted that:

“A charge is not the same as an allegation. Before a charge is brought consideration is given to the evidence available supporting the charge. This gives more weight than an unscrutinised allegation. The legislation allows charges to be considered because Parliament recognises this distinction and the difficulties in obtaining a conviction… I am therefore required to give some weight to the charges. They do not constitute an exceptional circumstance by themselves… but they must be considered as part of the circumstances.”

  1. [28]
    In TNC, the Tribunal took into account: the lack of original statements from the complainants, the evidence had not been tested, the nature and similarity of the allegations, and the evidence that the complainants were receiving counselling and were reluctant to come forward.
  2. [29]
    The Tribunal found:

“I do not need to be satisfied on the balance of probabilities that the offences occurred, and I do not make that finding. I am satisfied, on the balance of probabilities, that the circumstances raise the possibility of a risk to children. The assessment of risk is not limited to the charges and I must consider the totality of the evidence.”

  1. [30]
    The Tribunal found that TNC had not complied promptly with his statutory obligation to apply for a Blue Card when establishing his business in Queensland, showed a lack of understanding of the risk of harm to children, did not appear able to identify the protective factors necessary to conduct a business – he did not ask the employees if they held Blue Cards, and did not ensure the business had an appropriate risk policy. TNC did not identify the need for an accessible process for children to make disclosures in a safe, risk free environment. The failure to take seriously the responsibilities of a director in a child related business posed, in the Tribunal’s view “a serious risk to children.” The Tribunal found that an exceptional case existed, based on the combination of the circumstances of the charges and TNC’s failure to demonstrate the necessary awareness of child safety issues, noting that “This risk is not limited to Mr TNC’s behaviour but extends to his ability to protect children from harm by others.”
  2. [31]
    I do not accept that the Tribunal found in TNC that the possibility of risk to children was sufficient to establish an exceptional case in which it would not be in the best interests of children for a positive notice to issue. Other factors were taken into account. Indeed, it is difficult to conceive a circumstance where the Tribunal could find that there was no possibility of risk to children in an application before it. Accordingly, I reject the respondent’s submissions in that regard.
  3. [32]
    PPA submits:
    1. (a)
      The version of events provided to police by Person 1 should be afforded little weight by the Tribunal given their inherent implausibility, the 144 days before the complaint was taken to the police, the DPP forming the view that Person 1 was “not a witness of truth”, the charges not proceeding to trial, and the ultimate dismissal of the VRO application; 
    2. (b)
      The version of events provided to police and given in evidence in court by Person 2 should be afforded little weight by the Tribunal given that her reliability and credibility were undermined at trial, she had previously told Person 1 that she had not been raped by PPA, there was a delay in seeking medical assistance and reporting the matter to the police, PPA was found not guilty of all charges following a jury trial, and the application for the VRO and charges of breaching the VRO were dismissed.
    3. (c)
      Although not necessary to grant the application for a positive notice, there is sufficient evidence for the Tribunal to find that Person 1 and Person 2 colluded in lodging the complaints with police, and that the circumstances are different from TNC and Volkers (discussed below) where the Tribunal was satisfied that a pattern of behaviour was seen in the various complaints;
    4. (d)
      PPA has given consistent and plausible evidence in the court trial, and in his written and oral evidence to this Tribunal;
    5. (e)
      The Tribunal cannot ignore the outcomes of the previous court hearings, and should afford significant weight to them;
    6. (f)
      While it is possible to find the alleged behaviour occurred despite the not guilty finding (given the lower standard of proof at the Tribunal), such a finding is not warranted in these circumstances;
    7. (g)
      The respondent’s submission that there is a distinguishable difference between an allegation and a charge should be rejected. Alternatively, there must be significant weight attached to the prosecution’s decision to withdraw the charges relating to Person 1;
    8. (h)
      The fact that matters raised by Person 2 resulted in the charges proceeding to trial should not lend the allegations any further weight. In Queensland, trials only occur after a finding by a court that a prima facie case exists. In the jurisdiction in which the trial took place, there is no such requirement, and charges proceed to trial without that finding;
    9. (i)
      Considerations of remorse, insight and rehabilitation are not relevant to the Tribunal’s consideration in this case; and
    10. (j)
      The evidence of the VROs should be afforded little weight as they were interim orders, made ex parte, and were ultimately dismissed or revoked.
  4. [33]
    I accept the following submissions of the respondent:
    1. (a)
      Any harm suffered by PPA if he were not to receive a Blue Card is not relevant to this decision, as any such consideration must yield to the paramount consideration of the welfare and best interests of children;
    2. (b)
      The fact that the criminal charges did not result in convictions does not, of itself, mean that there is no elevation of risk to the welfare and best interests of children. Even where charges do not result in a conviction, they can and must be taken into account to provide a mechanism for the welfare and best interests of children to be protected;
    3. (c)
      All of the charges are relevant to the Tribunal’s consideration;
    4. (d)
      The passage of time does not detract from the seriousness of the alleged offending;
    5. (e)
      It is not the role of the Tribunal to determine whether PPA is guilty or not guilty of the charges; and
    6. (f)
      A not guilty verdict is not conclusive of issues to be determined by the Tribunal.
  5. [34]
    The respondent submits further:
    1. (a)
      The relevant function of the Tribunal involves an “analysis and evaluation of risk, and the likely prevention of future potential harm”. In determining such risk, it is necessary for the Tribunal to rely partly on facts and partly on reasonable suspicions.[5] I address this submission below;
    2. (b)
      The Tribunal must go into the circumstances of the alleged offending behaviour, but it cannot make findings that go behind the finding of guilty.[6] I address that submission below;
    3. (c)
      The cumulative effect of allegations of the same, or substantially similar acts committed by the Applicant should be considered by the Tribunal in totality and cumulatively, based on all the information before it, as opposed to through a segmented or compartmentalised approach.  Without making a finding on that submission, or on whether the alleged acts are the same or substantially similar, I have considered all of the allegations as a whole.
    4. (d)
      As the charges against PPA in relation to Person 2 proceeded to trial, the prosecuting authority had determined that there was a prima facie case, reasonable prospects of success and there was a public interest in proceeding;
    5. (e)
      There is no material before the Tribunal to support PPA’s assertions that Person 2’s evidence was rejected at trial, or that the assertions of Person 1 as they relate to her own complaint were untruthful;
    6. (f)
      The Tribunal should find that there is a possibility of risk to children such that it would not be in the bests interests of children for PPA to be issued with a Blue Card.
  6. [35]
    The respondent has referred the Tribunal to Chief Executive Officer, Department for child Protection v Scott (No 2) (2008) WASCA 171.  In Scott, the Supreme Court of Western Australia considered legislation very similar to the Queensland Legislation. Mr Scott had been convicted of offences of a sexual nature. The respondent has referred the case to the Tribunal as authority for the proposition that it is “necessary for the Tribunal to rely partly on facts and partly on suspicions” in conducting an analysis and evaluation of risk. I do not accept that submission. The relevant part of the judgement states “The critical question… is whether, on all the information and other material…there is an ‘unacceptable risk’ that the applicant might, in the future, cause sexual or physical harm to children, in the course of carrying out child-related work…It will be necessary, no doubt…in deciding whether…there is an ‘unacceptable risk’, to rely partly on facts and partly on reasonable suspicions.”
  7. [36]
    Following the decision in Maher[7] (referred to in the respondent’s submissions), it is settled in Queensland that the Tribunal does not conduct an enquiry, or make a finding, as to whether there is an “unacceptable risk to children”. As the respondent indicates in its submissions, the test is whether this is an exceptional case in which it would not harm the best interests of children to issue a Blue Card. I agree with the respondent’s submission that any contention that the question for determination is whether there is unacceptable risk should be rejected.
  8. [37]
    As I am not making any findings as to ‘unacceptable risk’, I do not propose to rely on suspicions, as urged by the respondent. My decision is based on the evidence available to me.
  9. [38]
    The respondent has referred the Tribunal to the previous Appeal Tribunal decision of WJ[8]. The applicant in that case had been issued with a negative notice following a criminal conviction for an incident which involved a child being injured. Of relevance to my decision is the Appeal Tribunal’s finding that while there had been previous attempts to characterise what an exceptional case is “A broad discretion is involved and attempts to paraphrase or to further define it are difficult and sometime unwise.”
  10. [39]
    In WJ, the Appeal Tribunal was considering a matter where the applicant had been convicted of a criminal offence. In that context, the Appeal Tribunal states, “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”. The case of PPA differs in the very material sense that he has not been convicted of a crime, and there is no finding of guilty.
  11. [40]
    The respondent submits that WJ is authority for the proposition that the Tribunal’s task is to determine whether there is a real risk of harm posed. I reject that submission. I note the Appeal Tribunal’s decision that, having identified evidence that would raise concerns, “the question is whether the evidence in regard to those factors make out an exceptional case for thinking it would not be in the best interests of children for WJ to be able to come in to contact with them in the course of her work.”
  12. [41]
    The respondent has referred the Tribunal to the previous Tribunal decision of Volkers.[9] 
  13. [42]
    In Volkers, a well-known swimming coach sought review of the respondent’s decision to issue a negative notice. Mr Volkers had been charged with seven counts of indecent treatment of children under 16, with the incidents said to have occurred between 1984 and 1987. Mr Volkers was committed for trial. He was interviewed by police and denied the allegations. Despite the high profile of the case, and substantial media attention, Mr Volkers was supported by a number of referees who attested that his conduct had always been exemplary.
  14. [43]
    The Tribunal found that a lack of demonstrated remorse on the part of Mr Volkers was “an irrelevant consideration”, given that he had consistently denied the behaviour which formed the basis of the charges.
  15. [44]
    Mr Volkers had acknowledged massaging one of the complainants in his home, making a comment to one of the complainants about returning as a pool buoy (a flotation device held between the legs of swimmers), rubbing the leg of one of the complainants, and rubbing another complainant’s legs on both sides “in the groin area”.
  16. [45]
    Mr Volkers did not provide oral evidence to the Tribunal.
  17. [46]
    In relation to the factors contained in the legislation, the Tribunal noted that Mr Volkers was charged with seven offences relating to the indecent treatment of children under 16. The offences were categorised as serious and disqualifying offences and occurred in the course of child related work (swimming coaching). The Tribunal considered it relevant that the charges were not discontinued because of a finding that the conduct alleged did not occur. The decision was based on a range of factors. Those related to the difficulty in prosecuting matters alleged to have occurred many years ago, the problems involved in particularising the dates upon which those events occurred, the uncertainty about the age of the complainants at the time, and perceived inconsistencies in the evidence, which led to an assessment that there was not a reasonable prospect of securing conviction.
  18. [47]
    The Tribunal found that apart from one comment that “maybe I shouldn’t have”, Mr Volkers had demonstrated no insight that he was aware of his obligations as a coach and mentor to ensure that he did not abuse the position of trust he held in respect to the girls he was coaching. The complaints had a degree of similarity – the sexualised behaviour followed, or was part of, a massage and inappropriate touching while in a car.
  19. [48]
    The Tribunal noted that the alleged offending occurred over a period of years and was not an isolated incident, involving a number of complainants. There were also other allegations which did not form the basis of criminal charges. Mr Volkers was in a position of trust in relation to those he coached, apart from inappropriate touching he engaged in crude sexually slanted conversations with a number of young women, because of his high profile, the complainants formed the view that any complaint they made was likely to be disbelieved, Mr Volkers had not demonstrated an awareness of the effect of his behaviour on the complainants. Despite the charges being laid, Mr Volkers had not demonstrated that he had engaged in any protective strategies.
  20. [49]
    Ultimately, the Tribunal found that

“Although the allegations relate to offences committed many years ago, they are of such a repetitive and serious nature that time does not detract from their seriousness. Significantly also is the fact that there have been other allegations made which do not form the basis of charges. His admitted behaviour transcends a certain “casualness of approach” viewed in the context in which it occurred and by any interpretation, it could not be regarded as innocent.

“When viewed in totality…the Tribunal is satisfied the applicant conducted himself inappropriately and not protectively with young women to whom he had a significant responsibility in his position of trust.”

  1. [50]
    A negative notice was issued.
  2. [51]
    Volkers differs materially from the matter currently before the Tribunal. The charges against PPA related to complaints which were made not long after the alleged incidents occurred. The Tribunal is not satisfied that the allegations raise concerns of behaviour of a repetitive nature. There are significant differences in the circumstances as reported by the complainants in this case. The charges relating to Person 2 went before a jury and PPA was found not guilty.
  3. [52]
    The respondent submits that PPA’s assertions that the VROs were revoked is incorrect. The respondent refers to material before the Tribunal and states “The applicant did not object to final orders being made”. The material does not support the respondent’s submissions. I have before me a copy of an interim VRO relating to Person 2 made on 19 March 2007. I also have a document signed by PPA on 28 March 2007 indicating that he objected to the final Order being made. Further, I have an interim VRO relating to Person 1 made on 19 March 2007. I also have a document signed by PPA on 28 March 2007 indicating that he objected to a final order being made.
  4. [53]
    I have documents from the State Police Force stating that three Interim VROs issued on 19 March 2007 and expiring on 27 March 2009 had been revoked.

FINDINGS OF THE TRIBUNAL

  1. [54]
    I do not consider that the delay in either of the complainants making complaints to the police, or in Person 2 seeking medical assistance, damages their credibility. Nor do I consider that their credibility is damaged by driving in a car with PPA on the night of or the day following the alleged assaults. I do consider it relevant that the DPP formed the view that Person 1 was “not a witness of truth” and so she did not give evidence in the trial, and that the charges relating to her interactions with PPA did not proceed to trial. I have taken into account that the applications for the VROs were dismissed.
  2. [55]
    I have taken into account that Person 2 and PPA provided evidence and were subject to cross examination in a criminal trial. The jury finding of not guilty carries significant weight in my determination.
  3. [56]
    I make no finding in relation to the suggestion of collusion between Person 1 and Person 2.
  4. [57]
    PPA has conceded that it is not impossible for the Tribunal to make a finding that events occurred which are sufficient to establish an exceptional case in this jurisdiction, despite a finding of not guilty when criminal charges are before the court. I accept that to be the case.  I accept the respondent’s submission that there is a distinguishable difference between an allegation and a charge. A charge must be supported by evidence which has undergone some sort of consideration by the police. An allegation is not. 
  5. [58]
    I accept PPA’s submissions that there was no court finding of a prima facie case against PPA. I accept that considerations of remorse, insight and rehabilitation are not relevant in this case. 
  6. [59]
    A positive notice must issue unless I am satisfied that this is an exceptional case in which it would be in the best interest of children for a negative notice to be issued.  I have taken into account the very serious and significant charges laid against PPA, and the evidence in support of those charges. The fact the charges were laid does not in themselves establish an exceptional case. I have taken into account the applications for the VROs and note that the applications were ultimately dismissed when heard and considered. The charge of breaching the VRO has been taken into account, as has the dismissal of that charge.  There is no other evidence which would establish exceptional circumstances.
  7. [60]
    The correct and preferable decision is that this is not an exceptional case in which it would not be in the best interests of children for PPA to be issued a blue card. I set aside the decision of the Respondent.

COSTS

  1. [61]
    The QCAT Act makes provision, in some circumstances, for costs to be ordered against a party. PPA seeks an order that the respondent pay his costs in the amount of $11,324.55. He has provided evidence that his out-of-pocket costs legal costs related to this proceeding amount were $19,639.40 and has calculated the claim for costs pursuant to the District Court Scale. I note that the Tribunal granted PPA leave to be represented on 11 March 2021.
  2. [62]
    An Object of the QCAT Act is to have the tribunal deal with matters in a way that is “assessable, fair, just, economical, informal and quick.”[10] One of the Tribunal’s functions is to “ensure proceedings are conducted in an informal way that minimises costs to parties.”[11]
  3. [63]
    The QCAT Act sets out the position in relation to costs. Relevantly, the legislations states:

s 100 Each party usually bears own costs

Other than as provided under this Act or an enabling Act, each party to a proceeding must bear the party’s own costs for the proceeding.

102 Costs against party in interests of justice

  1. (1)
    The tribunal may make an order requiring a party to a proceeding to pay all or a stated part of the costs of another party to the proceeding if the tribunal considers the interests of justice require it to make the order.

…

  1. (3)
    In deciding whether to award costs under subsection (1) or (2) the tribunal may have regard to the following—

(a) whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including as mentioned in section 48(1)(a) to (g);

  1. (b)
    the nature and complexity of the dispute the subject of the proceeding;
  1. (c)
    the relative strengths of the claims made by each of the parties to the proceeding;
  1. (d)
    for a proceeding for the review of a reviewable decision—
  1. (i)
    whether the applicant was afforded natural justice by the decision-maker for the decision; and
  1. (ii)
    whether the applicant genuinely attempted to enable and help the decision-maker to make the decision on the merits;
  1. (e)
    the financial circumstances of the parties to the proceeding;
  1. (f)
    anything else the tribunal considers relevant. 103 Costs against representative in interests of justice.

48 Dismissing, striking out or deciding if party causing disadvantage

  1. (1)
    This section applies if the tribunal considers a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including by—
  1. (a)
    not complying with a tribunal order or direction without reasonable excuse; or
  1. (b)
    not complying with this Act, an enabling Act or the rules; or
  1. (c)
    asking for an adjournment as a result of conduct mentioned in paragraph (a) or (b); or
  1. (d)
    causing an adjournment; or
  1. (e)
    attempting to deceive another party or the tribunal; or
  1. (f)
    vexatiously conducting the proceeding; or
  1. (g)
    failing to attend conciliation, mediation or the hearing of the proceeding without reasonable excuse.
  1. [64]
    In this jurisdiction, the success of an application does not inevitably lead to an order for costs. Neither does the Tribunal’s rejection of the respondent’s submissions and interpretation of the law. That is clearly not what is intended in the legislation. I have had regard to the matters mentioned in s 102. I am satisfied that the considerations relevant to my decision are contained in s 102(3)(a), (d), (e), and (f).

Has the respondent acted in a way that unnecessarily disadvantages PPA, including as mentioned in s 48(1) to (g)?

  1. [65]
    I am not satisfied that the respondent had failed to comply with a tribunal order or direction, to comply with the Act, or to attend a tribunal proceeding. I am not satisfied that the respondent has caused an adjournment or attempted to deceive another party or the tribunal or vexatiously conducted the proceeding.  I am not satisfied that the conduct of the respondent has unnecessarily disadvantaged PPA.

Whether the applicant was afforded natural justice by the decision-maker for the decision

  1. [66]
    I am satisfied that PPA was afforded natural justice in the decision making process undertaken by the respondent. I note that he was invited to make submissions and provide information.

Whether the applicant genuinely attempted to enable and help the decision-maker to make the decision on the merits

  1. [67]
    The applicant did provide all information which he identified would assist the decision maker to make the decision on the merits.

The financial circumstances of the parties to the proceeding

  1. [68]
    The respondent, as a government department, clearly has access to a greater pool of resources than PPA. That pool is not unlimited, and the respondent must be subject to some budgetary constraints.

Anything else the tribunal considers relevant

  1. [69]
    I have carefully considered the role which the respondent has played in these proceedings, including its responsibility to act as a model litigant. It has been unhelpful to provide submissions which direct the Tribunal to follow cases which are not on point, or which are said to develop legal precedent which, upon closer reading, they do not. I am not, however, satisfied on balance that there was any attempt to mislead the Tribunal or interfere with the Tribunal’s decision-making role. 
  2. [70]
    PPA refers the Tribunal to one reported case where costs were awarded against the respondent[12]. In DBC, the respondent advised the applicant six days prior to the hearing that it had reconsidered its decision and would issue a positive notice. The Tribunal found that the only evidence against the applicant was the “persuasively graphic” evidence of his ex-wife, and that all available material was before the Tribunal at the time the applicant sought leave to be represented.
  3. [71]
    PPA submits that:
    1. (a)
      Because there is only one reported case in which costs have been awarded against the respondent does not mean that other cases have not warranted such an order and that the low number of decisions awarding costs may be due to the high number of self-represented applicants;
    2. (b)
      There is significant public interest in ensuring that the respondent acts fairly. Many applicants do not have the resources or expertise to challenge the respondent.  The public should be protected from “arbitrary decision making and the torturing of the term ‘exceptional’”;
    3. (c)
      The respondent could have reconsidered its decision at any point and issued a positive notice once all of the material was received, obviating the need for a hearing and ongoing associated cost for PPA.
  4. [72]
    PPA has also referred the Tribunal to one recent reported case in this jurisdiction where costs were not awarded against the respondent[13].
  5. [73]
    I have taken into account the seriousness of the charges and consider it reasonable that this matter proceeded to a Tribunal hearing. Some of the material ultimately relied upon by the Tribunal was not available to the respondent when the decision was made to issue a negative notice, or at the compulsory conference, although I accept that it was available before the hearing commenced.
  6. [74]
    While this process has no doubt been inconvenient, distressing, and frustrating to PPA, I am not satisfied that the interests of justice require the making of a costs order.

NON-PUBLICATION ORDER

  1. [75]
    PPA seeks a non-publication order to protect the contents of any document produced by the Tribunal, the evidence before the Tribunal, and any information that may enable the identification of a person who has appeared before or is affected by the proceeding.
  2. [76]
    The Queensland Civil and Administrative Tribunal Act 2009 (Qld) allows for the making of a non-publication order in very limited circumstances.[14] In this case, PPA submits, and it is not challenged by the respondent, that the names of complainants in sexual matters is prohibited under the law of the jurisdiction in the which the charges arose. I am satisfied, therefore, that publication of any identifying information would interfere with the proper administration of justice. Accordingly, I will issue a non-publication order to prevent such identification. That will include the names and locations of PPA, the complainants, and the jurisdiction in which the charges arose. The nature of PPA’s current employment is relevant to my decision and is not sufficient to identify him or the complainants, and so is contained in this decision.

HUMAN RIGHTS

  1. [77]
    I have had regard to the Human Rights Act 2019 (Qld). PPA’s human rights, in particular, his rights to a fair hearing, to privacy and reputation, and not to be tried or punished more than once were considered, as was the right of every child to ‘the protection that is needed by the child, and is in the child’s best interests, because of being a child’.[15] I am satisfied that this decision is compatible with human rights in accordance with the legislation.[16]

Footnotes

[1] Working with Children (Risk Management and Screening) Act 2000 (Qld) s 6, s 360.

[2]  Ibid s 221.

[3]  Ibid s 226.

[4] TNC v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 489.

[5]  The respondent relies on Chief Executive Officer, Department for Child Protection v Scott (No 2) (2008) WASCA 171.

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

[7] Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.

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

[9] Volkers v Commission for Children and Young People and Child Guardian [2010] QCAT 243.

[10]  s 3 QCAT Act.

[11]  s 4 QCAT Act.

[12] DBC v Director-General, Department of Justice and Attorney-General [2021] QCAT 21.

[13] CTA v Director-General, Department of Justice and Attorney-General [2021] QCAT 442.

[14] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 66.

[15] Human Rights Act 2019 (Qld).

[16]  s 13 Human Rights Act 2019 (Qld).

Close

Editorial Notes

  • Published Case Name:

    PPA v Director-General, Department of Justice and Attorney-General

  • Shortened Case Name:

    PPA v Director-General, Department of Justice and Attorney-General

  • MNC:

    [2022] QCAT 166

  • Court:

    QCAT

  • Judge(s):

    Member Goodman

  • Date:

    19 Apr 2022

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Chief Executive Officer, Department of Child Protection v Scott No.2 (2008) WASCA 171
3 citations
Jump To
Cite 1 - (2008) WASCA 171
Cite 2 - (2008) WASCA 171
Cite 3 - (2008) WASCA 171
Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
2 citations
Jump To
Cite 1 - [2004] QCA 492
Cite 2 - [2004] QCA 492
CTA v Director-General, Department of Justice and Attorney-General [2021] QCAT 442
2 citations
Jump To
Cite 1 - [2021] QCAT 442
Cite 2 - [2021] QCAT 442
DBC v Director-General, Department of Justice and Attorney-General [2021] QCAT 21
2 citations
Jump To
Cite 1 - [2021] QCAT 21
Cite 2 - [2021] QCAT 21
Re FAA [2006] QCST 15
1 citation
Jump To
Cite 1 - [2006] QCST 15
TNC v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 489
2 citations
Jump To
Cite 1 - [2015] QCAT 489
Cite 2 - [2015] QCAT 489
Volkers v Commission for Children and Young People and Child Guardian [2010] QCAT 243
2 citations
Jump To
Cite 1 - [2010] QCAT 243
Cite 2 - [2010] QCAT 243
WJ v Chief Executive Officer, Public Safety Business Agency [2015] QCATA 190
3 citations
Jump To
Cite 1 - [2015] QCATA 190
Cite 2 - [2015] QCATA 190
Cite 3 - [2015] QCATA 190

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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