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DJB v Director-General, Department of Justice and Attorney General (No 1)[2024] QCAT 174

DJB v Director-General, Department of Justice and Attorney General (No 1)[2024] QCAT 174

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

DJB v Director-General, Department of Justice and Attorney General (No 1) [2024] QCAT 174

PARTIES:

DJB

(applicant)

v

Director-General, Department of Justice and Attorney General

(respondent)

APPLICATION NO/S:

CML 180-22

MATTER TYPE:

Children’s matters

DELIVERED ON:

Decision – 4 April 2024

Amended Decision – 8 April 2024

Reasons – 8 April 2024

HEARING DATE:

4 April 2024

HEARD AT:

Cairns

DECISION OF:

Member Taylor

ORDERS:

APPLICATION FOR MISCELLANEOUS MATTERS (ADJOURNMENT)

IT IS THE DECISION OF THE TRIBUNAL THAT:

  1. The Application for Miscellaneous Matters (Adjournment) filed by the Applicant on 27 March 2024 is dismissed.

APPLICATION TO REVIEW A DECISION

THE TRIBUNAL DIRECTS THAT :

  1. Pursuant to s 93(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the substantive hearing of the Application to Review a Decision filed by the Applicant on 14 June 2023 will proceed today in the absence of the Applicant following his failure to appear.
  2. Having heard from the Respondent’s representative in the hearing, the hearing is  adjourned for the submission of written closing submissions.
  1. The Respondent must file two (2) copies of her written closing submissions to the Tribunal and send one (1) further copy to the Applicant by 4:00pm on 24 April 2024.
  2. The Applicant must file two (2) copies of his written closing submissions (if any), including any response to the Respondent’s submissions, to the Tribunal and send one (1) further copy to the Respondent by 4:00pm on 15 May 2024.
  3. The Respondent must file two (2) copies of her reply (if any) on matters of law arising from the Applicant’s submissions to the Tribunal and send one (1) further copy to the Applicant by 4:00pm on 24 May 2024.
  4. Should the Respondent not be making any submissions in reply she is to notify the Tribunal and Applicant promptly after receipt of the Applicant’s submissions.
  5. The decision of the Tribunal is otherwise reserved, to be determined on-the-papers following compliance with Orders 4 to 7 herein or the expiry of the time for such compliance.

CATCHWORDS:

ADMINISTRATIVE LAW – REASONS FOR ADMINISTRATIVE DECISIONS – PROCEDURE AND OTHER MATTERS – where the applicant applied for a review of a decision under the Working with Children (Risk Management and Screening) Act 2000 (Qld) – where the application had been listed for hearing in May 2023 – where the applicant applied late for an adjournment of that hearing due to commitments to shift work in new employment not enabling him to attend – where the application was relisted for hearing in April 2024 – where the applicant once again applied for an adjournment due to commitments to shift work in the same employment again not enabling him to attend – where the applicant had known of the shift work commitments, and thus the limits on his availability, for many months before the hearing was relisted but he had not informed the Tribunal of same until he applied for the second adjournment – where the application for adjournment had not been determined before the hearing date in April 2024 and the applicant had been informed it would be heard and determined at the start of the hearing – where the applicant failed to appear for hearing of his application for adjournment or the hearing of his application for review as scheduled – where the hearing of his application for adjournment was heard in his absence – where the application for adjournment was dismissed and so the hearing of his application for review commenced in his absence – where relevant documentation was received into evidence in that hearing – where directions were then given for the conduct of the application for review to proceed effectively as an on-the-papers hearing – where questions arose as to whether an oral hearing was mandated under the legislation – where a question arose as to the applicant’s human rights being contravened

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – where the applicant applied for a review of a decision under the Working with Children (Risk Management and Screening) Act 2000 (Qld) – where that application was first listed for hearing in May 2023 – where that hearing was vacated following the applicant’s application for adjournment – where the application was relisted for hearing on 4 and 5 April 2024 – where the applicant once again applied for an adjournment – where the application for adjournment had not been determined before the hearing date of 4 April 2024 and the applicant had been informed it would be heard and determined at the start of the hearing on 4 April 2024 – where the applicant failed to appear for hearing of his application for adjournment or the hearing of his application for review as scheduled – where the hearing of his application for adjournment was heard in his absence – where the application for adjournment was dismissed and so the hearing of his application for review commenced in his absence – where relevant documentation was received into evidence in that hearing – where directions were then given for the conduct of the application for review to proceed effectively as an on-the-papers hearing – where questions arose as to whether an oral hearing was mandated under legislation

HUMAN RIGHTS – JURISDICTION AND PROCEDURE – QUEENSLAND – where the applicant applied for an adjournment on a second occasion of the hearing of his substantive application for review, again citing work commitments – where the application for adjournment had not been determined before the hearing date of 4 April 2024 for the substantive application and the applicant had been informed it would be heard and determined at the start of the hearing on 4 April 2024 – where the applicant failed to appear for hearing of his application for adjournment or the hearing of his substantive application as scheduled – where the hearing of his application for adjournment was heard in his absence – where the application for adjournment was dismissed and so the hearing of his application for review commenced in his absence – where relevant documentation was received into evidence in that hearing – where directions were then given for the conduct of the application for review to proceed effectively as an on-the-papers hearing – where questions arose as to whether an oral hearing was mandated under the legislation – where a question arose as to the applicant’s human rights being contravened

Charter of Human Rights and Responsibilities Act 2006 (Vic)  s 24

Human Rights Act 2019 (Qld)  s 13, s 31, s 48

Queensland Civil and Administrative Tribunal Act 2009 (Qld)  s 3, s 4, s 19, s 20, s 28, s 32, s 45, s 48, s 66, s 90, s 92, s 93, s 93, s 95, 135

Working with Children (Risk Management and Screening) Act 2000 (Qld) s 229

Aon Risk Services Australia v ANU (2009) 239 CLR 175, followed

Condon v Pompano (2013) 252 CLR 38, applied

Deitrich v The Queen (1992) 177 CLR 292,cited

Kioa v West (1985) 159 CLR 550, applied

Knight v Wise [2014] VSC 76

Minister for Immigration & Multicultural & Indigenous Affairs v Bhardwaj (2002) 209 CLR 597, cited

Roberts v Harkness (2018) 57 VR 334. applied

Secretary, Department of Human Services v Sanding (2011) 36 VR 22, referred to

SSJ v Director-General, Department of Justice and Attorney-General [2020] QCAT 252, cited

Victoria Police Toll Enforcement v Taha (2013) 49 VR 1, referred to

Queensland Civil and Administrative Tribunal Practice Direction No 3 of 2013

APPEARANCES & REPRESENTATION:

Applicant:

No appearance

Respondent:

Mr P. McNiell – Advocacy Officer for Blue Card Services

REASONS FOR DECISION

  1. [1]
    At the conclusion of the hearing on 4 April 2024 I announced by orders, namely a decision on an interlocutory application and directions as to the future conduct of the substantive application, but on the basis that written reasons for same would follow. These are those reasons. But, before embarking upon them two points are noted.
  2. [2]
    Firstly, in drafting of these reasons it occurred to me that the last of the directions I gave did not reflect with precision that which I discussed during the hearing with the respondent’s representative in the absence of the applicant, such being in terms of the manner in which the substantive application will ultimately be considered and decided. Accordingly, pursuant to s 135(1)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), on 8 April 2024 contemporaneously with the provision of these reasons I caused an Amended Decision to be issued with Order 8 therein being amended to comprehensively state the intended direction. I also took the liberty of inserting the headings in the Amended Decision for clarity in reading. Thus the Amended Decision and the Orders expressed herein are now consistent.
  3. [3]
    Secondly, on 10 February 2023, this Tribunal gave a direction pursuant to s 66 of the QCAT Act prohibiting the publication of material in this proceeding to the extent that it could identify or lead to the identification of the applicant, any family member of the applicant, any child, or any non-party to the proceeding. For this reason, these reasons are published in a de-identified format.

Summary of the Reasons for the Decision and the Directions

  1. [4]
    The applicant seeks a review by this Tribunal of a decision made by a decision-maker for the respondent to cancel his Working with Children Check (Exemption) (Exemption Card) and to issue him with a negative notice under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (WWCA).
  2. [5]
    The hearing of that application was listed for hearing on 31 May and 1 June 2023. However, the applicant made a late application for an adjournment of that hearing, such which was granted two days before the hearing was to have commenced. His reason for needing the adjournment was his work commitments resulting him being unavailable to attend the hearing. At that time he had recently commenced new employment as a Fly-In Fly-Out worker in a Central Queensland mine on a 7 day on / 7 day off roster and so was not able to obtain leave to attend the hearing.
  3. [6]
    The hearing was subsequently listed for hearing on 4 and 5 April 2024. Once again, the applicant applied for an adjournment of that hearing citing work commitments resulting him being unavailable to attend the hearing. However unlike the first occasion when his roster was issued to him upon obtaining employment and so not known to him until close to the hearing date, he had been aware of his 2024 roster since December 2023. Yet he had not informed the Tribunal Registry of any limitations as to his availability. Had he done so, promptly upon becoming aware of what it was, it would have saved the wasted time and resources of this Tribunal by ensuring the scheduling of the hearing did not clash with his roster.
  4. [7]
    Moreover, and concerningly, upon being informed of the hearing dates in 2024 the applicant applied for its adjournment simply on the basis of the dates clashing with his rostered time on. He did not state that he was unable to obtain leave to attend the hearing or provide any evidence to that effect or provide any other cogent reason which was outside of his control for not being able to attend the hearing. His only reason for requesting the adjournment is that the hearing dates clashed with his rostered-on-time.
  5. [8]
    His application for adjournment had not been determined prior to the commencement of the hearing on 4 April 2024. On 3 April 2024 when the application was referred to me, I caused the Registry to promptly inform the parties that the application would be heard and determined at the start of the hearing and that they should be prepared to proceed with the substantive application given that there was no certainty the application for adjournment would be granted.
  6. [9]
    Disappointingly, the applicant failed to appear at the hearing on 4 April 2024. The respondent’s representative informed the Tribunal at the start of the hearing that he had spoken to the applicant via phone the day prior at which time the applicant informed him that he would be on flight to the mine from 8:00 am on 4 April 2024 and so would not be attending the hearing. Concerningly, there is no record of the applicant having contacted the Tribunal Registry to inform this Tribunal of that. This is despite the fact that his application for adjournment had not been determined, and that, as just noted, he was informed the day prior that his application would only be determined on 4 April but that he was still required to be ready to proceed with his substantive application.
  7. [10]
    In my opinion the applicant’s conduct in this regard, combined with his earlier failure to have promptly inform the Tribunal Registry of limitations on his availability, showed a complete disregard, to the height of ignorance, of the need for efficiency in the conduct of any matter in this Tribunal given its limited and overstretched resources. It seemed to me that the applicant simply chose to conduct himself as he saw fit without having any regard to the needs of this Tribunal and importantly other users of it.
  8. [11]
    Notwithstanding his absence, the Second Application for Adjournment was heard and determined. For the reasons explained herein, he was unsuccessful in his efforts to have the hearing adjourned for a second time.
  9. [12]
    That being so, the hearing then proceeded in terms of his substantive application for review notwithstanding his absence. Once again disappointingly, the respondent’s representative then informed me he was not ready to proceed with the hearing given that his understanding, from his discussion with the applicant the day prior, was that the hearing would not proceed as scheduled. This is despite him confirming to me at the start of the hearing he had received the notification from the Registry the day prior as I referred to earlier. Accordingly I stood down for around 2 hours plus the lunch break to afford the respondent’s representative time to prepare to conduct the hearing in the applicant’s absence.
  10. [13]
    Upon resuming the hearing after the lunch break, the respondent’s representative assisted me in:
    1. clarifying some points of confusion I had noted earlier that morning arising out of my reading of the filed documentation; and
    2. identifying the relevant documentation as filed and to which regard may be necessary in deciding the substantive Application for Review, with such documents then being received and entered as Exhibits in the proceeding.
  11. [14]
    That being done, I then gave directions for the filing of written submissions by the parties, such which could be presented by reference to the Exhibited documents drawing my attention to the relevant parts therein with submissions being made as to the appropriate weight that should be given to such and in turn the findings of fact that could be made upon them leading to the ultimate decision to be made.
  12. [15]
    Such an approach is in effect akin to the proceeding being determined on the papers, but whilst affording the applicant, given his failure to appear at the hearing, the opportunity to present his case by way of written submissions and so maintaining the recognition of his entitlement to procedural fairness and a fair hearing. In my opinion, as I explain in these reasons in some detail, such reflects the necessity to ensure that the limited and overstretched resources of this Tribunal are not wasted by applications for adjournment of hearings simply on the basis, as is the case here, an applicant had not taken the necessary steps to ensure that this Tribunal was aware of any limitation on his availability and there was no cogent reason for an adjournment that was effectively outside his control.

Background

  1. [16]
    On 16 March 2018, the applicant was issued with an Exemption Card.
  2. [17]
    On 18 May 2022, the respondent cancelled the applicant’s Exemption Card and issued him with a negative notice. Such was as a consequence of the applicant being convicted on 6 August 2020, although no conviction was recorded, on a charge of ‘assault occasioning bodily harm in a public place whilst intoxicated’ arising out of an event which occurred in February 2020. (the Decision).
  3. [18]
    On 14 June 2022, the applicant applied to this Tribunal for a review of that Decision (the Application for Review).[1]
  4. [19]
    What then followed was a series of directions issued for the filing of documentary material, and on 14 April 2023 the parties were given notice of the hearing of that application, it being listed for 31 May and 1 June 2023.
  5. [20]
    Shortly before that hearing, on or about 4 May 2023 the respondent filed and served an ‘Outline of Submissions’. (the Outline of Submissions) [2]
  6. [21]
    On 24 May 2023, the applicant applied for an adjournment of that hearing citing work commitments as the reason, namely that he had commenced work from 11 May 2023 as a Fly-In / Fly-Out worker in a mine in central Queensland, and as a consequence of only having just started in that employment he had no accrued leave time. Shortly thereafter on 26 May 2023 he provided by way of e-mail an ‘amendment’ to his application wherein he listed available dates based on his employment roster up to the end of December 2023. (the First Application for Adjournment)
  7. [22]
    On 29 May 2023, the adjournment was granted and the hearing was vacated. Subsequently further directions were given extending time for compliance with earlier directions for the filing of material.
  8. [23]
    On 14 June 2023, the applicant sent an e-mail to the Tribunal Registry in which the following statement appears:[3]

I wish to advise that I have no further material to be filed and ask that the Tribunal relist the hearing on a date to be advised, taking into account the dated I noted in my Form 40 filed on 24 May 2023.

  1. [24]
    On 27 June 2023, a Direction was given that the matter would be relisted for a two day in person hearing in Cairns at a date and time to be advised. There was no subsequent contact from the applicant or the respondent to the Tribunal Registry.
  2. [25]
    It was then not until 14 March 2024 that the parties were notified of the hearing being re-listed, such to be conducted in Cairns on 4 and 5 April 2024.
  3. [26]
    On 21 March 2024, by way of ordinary mail, and then again on 27 March 2024 by way of e-mail, the applicant once again applied for an adjournment of the hearing. His reason was again work commitments, namely that he commenced a shift of 7 days night work on 4 April 2024 and thus would be unavailable to attend the hearing (the Second Application for Adjournment).[4]
  4. [27]
    On 3 April 2024, the Second Application for Adjournment was referred to me. Upon receipt of it I directed the Registry to inform the parties that it would be heard and determined by me at the start of the hearing on 4 April 2024, but in doing so the parties were not to assume that the application would be granted and that they were to be ready to proceed with the hearing as originally scheduled should the application be dismissed. Notwithstanding that advice, the applicant did not appear at the hearing on 4 April 2024, even though he was called three times over the Courthouse Public Address System just prior to the start of hearing. Nor did he contact the Tribunal Registry after being notified as above to inform the Tribunal that he could not attend and explain why.
  5. [28]
    The Second Application for Adjournment was thus heard and determined in his absence as permitted under s 93(2) of the QCAT Act. For the reasons I give later herein that application was dismissed.
  6. [29]
    What then followed was the conduct of the hearing of the Application for Review as scheduled, albeit in the applicant’s absence but once again as permitted under s 93(2) of the QCAT Act. That was a short hearing with the documentation which had been filed being identified with some clarity and in turn directions being given by me for the filing of written submissions by both the applicant and the respondent, thus enabling the matter to proceed and effectively be determined on the papers.

The Relevant Law

  1. [30]
    I turn first to the statutory law upon which the issues arising from that background were addressed by me.
  2. [31]
    The first is the QCAT Act. This Tribunal is governed by the provisions of that Act, the objects of which are as laid out in s 3 therein, with the means by which this Tribunal must achieve those objects laid out in s 4 therein, the relevant part thereof which is extracted here:

3  Objects

The objects of this Act are—

  1. …
  1. to have the tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick;

…

4  Tribunal’s functions relating to the objects

To achieve the objects of this Act, the tribunal must—

  1. facilitate access to its services throughout Queensland; and
  1. encourage the early and economical resolution of disputes before the tribunal, including, if appropriate, through alternative dispute resolution processes; and
  1. ensure proceedings are conducted in an informal way that minimises costs to parties, and is as quick as is consistent with achieving justice; and
  1. …
  1. ensure the tribunal is accessible and responsive to the diverse needs of persons who use the tribunal; and

… 

  1. [32]
    There are also relevant provisions of the QCAT Act dealing with the exercise of this Tribunal’s review jurisdiction, such which is the basis upon which it determines the Application for Review, and the conduct of a hearing in regards thereto. For convenience and ease of reference I extract these here to the extent relevant:

19  Exercising review jurisdiction generally

In exercising its review jurisdiction, the tribunal—

  1. must decide the review in accordance with this Act and the enabling Act under which the reviewable decision being reviewed was made; and
  1. may perform the functions conferred on the tribunal by this Act or the enabling Act under which the reviewable decision being reviewed was made; and
  1. has all the functions of the decision-maker for the reviewable decision being reviewed.

20  Review involves fresh hearing

  1. The purpose of the review of a reviewable decision is to produce the correct and preferable decision.
  1. The tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.

92  Notice

The principal registrar must give notice, as stated in the rules, of the time and place for the hearing of a proceeding to—

  1. each party to the proceeding; and
  1. …

of the hearing.

93 Deciding in absence of person

  1. This section applies if—
  1. a person has not attended a hearing and the tribunal is satisfied the person has been given notice of the hearing under section 92; or
  1. ….
  1. The tribunal may hear and decide the matter in the person’s absence.
  1. This section applies even if the absent person is a party to the proceeding.

95  Evidence

  1. The tribunal must allow a party to a proceeding a reasonable opportunity to—
  1. call or give evidence; and
  1. examine, cross-examine and re-examine witnesses; and
  1. make submissions to the tribunal.
  1. Despite subsection (1)—
  1. the tribunal may refuse to allow a party to a proceeding to call evidence on a matter if the tribunal considers there is already sufficient evidence about the matter before the tribunal; and
  1. the tribunal may refuse to allow a party to a proceeding to cross-examine a witness about a matter if the tribunal considers—
  1. there is sufficient evidence about the matter before the tribunal; and
  1. the evidence has been sufficiently tested by cross-examination; and
  1. …
  1. Evidence in a hearing—
  1. may be given orally or in writing; and
  1. if the tribunal requires, must be given on oath or by affidavit.

…

  1. [33]
    Related to these provisions is, as the respondent’s representative properly referred me to and to which he gave emphasis as I show as bold text herein, is the provisions of the QCAT Practice Direction No 3 of 2013 which is as relevant consistent with s 21 of the QCAT Act, in particular paragraph 3 thereof which I extract here in full:

The government of agency official (the decision-maker) which made the decision is required to use their best endeavours to assist the Tribunal so that it can make its decision on the review: that is, the decision-maker must assist the Tribunal to make the correct and preferable decision. Therefore, the decision-maker’s role is not adversarial. However, in discharging its obligations the decision-maker must properly test the evidence relied upon by the applicant … to perform its function of assisting the Tribunal.

  1. [34]
    These provisions must also be read in conjunction with two fundamental provisions of the QCAT Act which provides for relevant practices and procedures in the conduct of a proceeding. These are extracted here to the extent relevant:

28  Conducting proceedings generally

  1. The procedure for a proceeding is at the discretion of the tribunal, subject to this Act, an enabling Act and the rules.
  1. In all proceedings, the tribunal must act fairly and according to the substantial merits of the case.
  1. In conducting a proceeding, the tribunal—
  1. must observe the rules of natural justice; and
  1. …; and
  1. may inform itself in any way it considers appropriate; and
  1. must act with as little formality and technicality and with as much speed as the requirements of this Act, an enabling Act or the rules and a proper consideration of the matters before the tribunal permit; and
  1. must ensure, so far as is practicable, that all relevant material is disclosed to the tribunal to enable it to decide the proceeding with all the relevant facts.
  1. ….

32  Proceeding … on the papers

  1. ….
  1. The tribunal may, if appropriate, conduct all or a part of a proceeding entirely on the basis of documents, without the parties, their representatives or witnesses appearing at a hearing.
  1. If the tribunal conducts a proceeding under subsection (1) or (2), the tribunal must ensure the public has access to, or is precluded from access to, matters disclosed in the proceeding to the same extent as if the proceeding had been heard before the tribunal with the attendance in person of all persons involved.
  1. Provisions of this Act applying to a hearing apply with necessary changes in relation to a proceeding conducted under subsection (1) or (2).
  1. [35]
    The second is the WWCA, the relevant provision of which is s 229 therein given its relationship with ss 19 and 20 of the QCAT Act, such which I extract here in full:[5]

229  Chief executive to invite submissions from person about particular information

  1. This section applies if the chief executive—
  1. must decide whether or not there is an exceptional case for the person; and
  1. is proposing to decide the working with children check (general) application by issuing a negative notice to the person.
  1. The chief executive must give the person a written notice—
  1. stating the following—
  1. the police information, domestic violence information, disciplinary information or adverse interstate WWC information about the person that the chief executive is aware of;
  1. any other information about the person that the chief executive is aware of that the chief executive reasonably believes is relevant to whether it would be in the best interests of children for the chief executive to issue a working with children clearance to the person; and
  1. inviting the person to give the chief executive, within a stated time, a submission about—
  1. whether or not there is an exceptional case for the person; or
  1. why the chief executive should issue a working with children clearance, or should not issue a negative notice, because of an exceptional case for the person.
  1. The stated time must be reasonable and, in any case, at least 7 days after the chief executive gives the notice to the person.
  1. Before deciding the application, the chief executive must consider any submission received from the person within the stated time.
  1. A submission mentioned in subsection (2)(b) may be made orally or in a language other than English if the chief executive considers a submission in that form is reasonable in the circumstances.
  1. [36]
    The third is the Human Rights Act 2019 (Qld) (the HRA) to which the respondent’s representative referred as being relevant, in particular s 13 and s 31 therein which once again for ease of reference I extract as relevant:

13  Human rights may be limited

  1. A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.
  1. In deciding whether a limit on a human right is reasonable and justifiable as mentioned in subsection (1), the following factors may be relevant—
  1. the nature of the human right;
  1. the nature of the purpose of the limitation, including whether it is consistent with a free and democratic society based on human dignity, equality and freedom;
  1. the relationship between the limitation and its purpose, including whether the limitation helps to achieve the purpose;
  1. whether there are any less restrictive and reasonably available ways to achieve the purpose;
  1. the importance of the purpose of the limitation;
  1. the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right;
  1. the balance between the matters mentioned in paragraphs (e) and (f).

31  Fair hearing

  1. A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.
  1. …
  1. All judgments or decisions made by a court or tribunal in a proceeding must be publicly available.
  1. [37]
    That then leads to the relevant caselaw and the judicial consideration of similar issues that have arisen previously before Courts, such which must be considered in conjunction with the statutory provisions to which I have just referred.
  2. [38]
    Firstly, and most critically, there is the seminal decision of the High Court that deals with applications for late adjournments, namely Aon Risk Services Australia v ANU (2009) 239 CLR 175.(Aon v ANU)
  3. [39]
    As was noted by French CJ therein:[6]

In Dawson v Deputy Commissioner of Taxation, King CJ acknowledged the responsibility of judges to ensure, “so far as possible and subject to overriding considerations of justice”, that the limited resources which the State commits to the administration of justice are not wasted by the failure of parties to adhere to trial dates of which they have had proper notice.

  1. [40]
    Shortly thereafter the Chief Justice also made this comment in reference to the earlier High Court’s decision in Sali v SPC Ltd:[7]

…. By majority, this Court held that in the exercise of a discretion to refuse or grant an adjournment, the judge of a busy court was entitled to consider “the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties”. Brennan, Deane and McHugh JJ went on to say:

“What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources.”

Toohey and Gaudron JJ dissented in the result but acknowledged, by reference to GSA Industries, that (93):

“The contemporary approach to court administration has introduced another element into the equation or, more accurately, has put another consideration onto the scales. The view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court’s lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard are pressing concerns to which a court may have regard.”

The observations made in the two joint judgments in Sali were linked to the particular knowledge that a judge or court, called upon to exercise a discretion to adjourn, would have of the state of that court’s lists. However, the mischief engendered by unwarranted adjournments and consequent delays in the resolution of civil proceedings goes beyond their particular effects on the court in which those delays occur. In that connection, there have been a number of cases after Sali in which it has been accepted, in the context of Judicature Act Rules, that the public interest in the efficient use of court resources is a relevant consideration in the exercise of discretions to amend or adjourn.

  1. [41]
    A similar observation was made by the Gummow, Hayne, Crennan, Keifel and Bell JJ in Aon v ANU, also in reference to the same reasons of Toohey and Gaudron JJ in Sali, where their Honours stated in reference to a Rule of Court relevant in that proceeding:[8]

… the rules concerning civil litigation no longer are to be considered as directed only to the resolution of the dispute between the parties to a proceeding. The achievement of a just but timely and cost-effective resolution of a dispute has an effect upon the court and upon other litigants. …

  1. [42]
    Later in their reasoning therein their Honours then expressed this observation:[9]

Of course, a just resolution of proceedings remains the paramount purpose of r 21; but what is a “just resolution” is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings.

  1. [43]
    What also arises in this proceeding and the manner in which the Second Application for Adjournment and in turn the substantive Application for Review fell to be determined in the hearing before me was the question of procedural fairness, interchangeably at times referred to as natural justice, to which the applicant must be afforded. In that regard, another seminal decision of the High Court must be noted, it being Kioa v West (1985) 159 CLR 550 (Kioa v West)
  2. [44]
    As was observed by Mason J therein:[10]

What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting. …

In this respect the expression "procedural fairness" more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations: …

When the doctrine of natural justice or the duty to act fairly in its application to administrative decision-making is so understood, the need for a strong manifestation of contrary statutory intention in order for it to be excluded becomes apparent. The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case?

The Second Application for Adjournment

  1. [45]
    With that as the background to the issues which fell to be decided by me in the hearing on 4 April and in turn the relevant law upon which those issues were to be decided, I thus now turn to a consideration of the Second Application for Adjournment.

The Reasons for the application

  1. [46]
    As noted above, at the time of his First Application for Adjournment the applicant had only just become aware of his employment roster and thus his unavailability to attend a hearing of his Application for Review. He also explained that because of the fact he had only just started work in that employment he had no capacity to obtain leave to enable him to attend the hearing.
  2. [47]
    However such is not the same in terms of the Second Application for Adjournment. In making that application he provided a copy of what is said to be his 2024 Roster. That shows the first shift as flowing over from December 2023 up to 3 January 2024, with the next occurring 11 to 17 January 2024 and so on through to the end of December 2024. It is also noted thereon he was in the same employment situation. Thus, it may readily be inferred that he was aware of this Roster at the latest in December 2023, and that at least some entitlement to leave had accrued.
  3. [48]
    Yet, notwithstanding that by that time he had not been made aware of the date for re-listing of the hearing of his Application for Review, there is no record of him having notified this Tribunal of his availability during 2024. He could have, and should have, given such notification.[11]
  4. [49]
    It was then on 14 March 2024, by way of e-mail sent at 1:46 pm to his e-mail address, and to an alternative e-mail address being which I infer is to his wife or other relative,[12], that the applicant was informed of the hearing being listed on 4 and 5 April 2024 in Cairns to be conducted in person, such notice being sent consistent with the requirements of s 92 of the QCAT Act.(the Notice of Hearing)
  5. [50]
    However, notwithstanding that relatively brief period of time between the giving of the Notice of Hearing and the hearing dates, it was not until 21 March 2024 that the applicant sought to have the hearing adjourned on a second occasion given his asserted unavailability due to work commitments. By reference to the Roster attached to his Second Application for Adjournment, I see that he completed a night shift on 13 March 2024. From that I infer he would have been flown back from the mine on 14 March 2024 and accordingly it may also be inferred that the Notice of Hearing should have come to his attention not later than 15 March 2024. But the applicant did not give any explanation in his Second Application for Adjournment as to why he delayed in promptly making his application, or otherwise contacting the Tribunal Registry to discuss alternatives.
  6. [51]
    Moreover, and more critically, he did not include any explanation or supporting material in his application as to why he was unable to take leave or otherwise be excused from his work commitments to attend the hearing as scheduled. He should have done both but at the very least explained the latter.

Should the application be granted?

  1. [52]
    It is trite law that there are many good reasons why a proceeding should be adjourned. Examples are defects in service, inadequate time for preparation, the emergence of new issues, or unforeseen complexities. It may also be that a party needs additional time to consider a response to new issues or to secure material evidence or legal representation, or that relevant documents may not be available. None of these circumstances exist in the present proceeding.
  2. [53]
    It may also be appropriate to adjourn a hearing when a party is unable to attend. That is the premise for the Second Application for Adjournment. But it is not in the circumstance that he is unable to attend due to unforeseen circumstances, such as the late on-set of illness,[13] or some intervening event such as adverse weather conditions or an accident. His reason for seeking the adjournment is nothing more than the fact he is rostered to do shift work at the relevant time, a fact he had known for many months in advance of having received the Notice of Hearing and for which he could have, but did not, notify the Tribunal Registry of, which could have resulted in a two-day hearing being listed at a time he was available.
  3. [54]
    Moreover he could have and should have informed the Tribunal Registry of the absence of his availability as soon as he became aware of the Notice of Hearing and the dates listed. Whilst I accept it might be said that there was only short notice between the date on which the Notice of Hearing was sent to the applicant and the dates for the hearing, in my opinion that does not swing the pendulum in favour of an adjournment. It will be recalled that on 14 June 2023 he informed the Tribunal that he would not be filing any further material, and moreover he requested that the proceeding be listed for hearing. Such leads to only one inference – he was ready to proceed. Thus, there should have been no impediment, other than the lack of him organising himself and his witnesses (if he intended to call and rely on any at the hearing), for the hearing to be proceeded with even at short notice. In the circumstances of that short notice period, it was incumbent upon the applicant to have responded with a degree of urgency to inform the Tribunal Registry of the absence of his availability. The fact that he took almost a week to do so leads only to the conclusion that the application was late.
  4. [55]
    Moreover, as noted above it lacks substance by way of any meaningful explanation as to why the applicant could not re-organise his work commitments to enable him to attend the hearing.
  5. [56]
    In my opinion the applicant had proper and sufficient notice of the hearing. Thus, if his late application were granted given the circumstances I have just referred to, in my view it would adversely affect the efficient use of this Tribunal’s limited resources, such which gives rise to the consideration of the principles established in the High Court’s decision in Aon v ANU. These principles are apposite in the present circumstances notwithstanding that they were expressed in terms of rules of a particular court and in circumstances where the late adjournment request arose to facilitate an amendment to pleadings.
  6. [57]
    To allow the applicant a second adjournment of the hearing solely on the premise of his unavailability due to work commitments would be to act contrary to these principles and in turn contrary to the objects of the QCAT Act and the mandated means of achieving them as I identified them earlier in these reasons.
  7. [58]
    The resources of this Tribunal are limited. They are already stretched to what in my opinion can readily be said to be at times breaking point, such that to simply once again waste two days of hearing time solely as a result of the applicant failing to have organised himself to ensure his availability and the Tribunal’s availability coincide would be to impose a prejudicial effect on the Tribunal and other users of those resources.
  8. [59]
    That being said, in the circumstances upon which the applicant brings his Second Application for Adjournment, the adjournment was simply not warranted. For this reason there was an order made dismissing the Second Application for Adjournment.

The Substantive Hearing otherwise proceeded

  1. [60]
    With the Second Application for Adjournment being dismissed, the substantive hearing then proceeded. As noted above, the applicant was not in attendance at the start of the hearing. It however proceeded in his absence as permitted under s 93(2) of the QCAT Act. As noted earlier, at the conclusion of what became a relatively short hearing I gave directions for the filing and service of written closing submissions by each party.
  2. [61]
    In my opinion, such an approach was necessary given the applicant’s readily apparent, at the very least, complete ignorance, or at worst, entire disregard of the pressures that this Tribunal is under and the needs of its other users, seemingly putting himself first and choosing to simply not attend the hearing and get on a flight to his place of employment without having notified the Tribunal of that fact.
  3. [62]
    Moreover, it was consistent with ensuring the limited resources which the Queensland Government has committed to the administration of justice via this Tribunal would not be wasted by the applicant’s failure to have conducted himself in a manner which would enable him to adhere to a hearing date. Additionally, it would avoid the disruption in this Tribunal’s scheduling of hearings that would occur should the hearing be vacated and to be listed for a third occasion, which would in turn impose a consequential inconvenience to not only this Tribunal but would prejudice the interests of other litigants waiting to be heard in this Tribunal. Once again such is consistent with the principles espoused by the High Court in Aon v ANU to which I have referred earlier herein and given emphasis to as extracted from the reasoning therein.
  4. [63]
    For these reasons I proceeded to conduct the substantive hearing of the Application for Review in the applicant’s absence, with an order made to that effect.

Was there a denial of Procedural Fairness to the Applicant ?

  1. [64]
    I readily accept that such an approach gives rise to one saying that to deny the applicant the adjournment on a second occasion, and thus for the hearing to proceed in circumstances where he was not available to appear at the hearing, and in turn to provide directions for the future conduct of the substantive application which effectively remove the need for an oral hearing and provides for determination of it ’on-the-papers’ would be to deny him procedural fairness. In the circumstances of this case I do not consider that to be so for the following reasons. But before discussing those reasons I pause here briefly to observe that there is a relationship between this issue and the applicant’s right to a fair hearing which I discuss in some detail when I consider the issue raised by the respondent’s representative in the hearing as to whether the applicant’s human rights have been contravened by, it might be said, denying him a fair hearing. The issues raised in that discussion later in these reasons is apposite to this issue and thus should be read as relevant to it.
  2. [65]
    Firstly, the applicant was on notice of the possibility that his Second Application for Adjournment might not be granted and that he should be ready to proceed with the substantive hearing on 4 April 2024. Thus it was incumbent upon him to, at the very least, have contacted the Tribunal Registry upon being so notified to raise the issue of him being unavailable to do so.
  3. [66]
    Secondly, in terms of his Application for Review, the applicant has been served with extensive and detailed material from the respondent which the respondent has also filed in this proceeding as being material said to be relevant to the decision the Tribunal is being asked to make and to which it should have reference, all of which has been made Exhibits in this proceeding.[14] He has also been afforded the opportunity to file material he considered to be relevant to his case, an opportunity he has taken up with substantial documentary material having been filed by him, also each of which has been made an Exhibit in the proceeding.[15]  In addition, he has also been given, the respondent’s Outline of Submissions such which in effect provided him well in advance of the hearing the detail of the case against him by reference to not only the documentary evidence that had been filed but the relevant law upon which his Application for Review should be determined.
  4. [67]
    Thirdly, notwithstanding the applicant’s absence from the hearing, and thus the absence of him being able to present his case orally by way of the presentation of his witnesses and/or making himself and his witnesses available for cross-examination, in my opinion he has not been adversely prejudiced in the conduct of his case. This is because whilst the hearing proceeded on 4 April 2024, as it unfolded the proceeding ultimately became one without oral evidence and without oral submissions. Rather, it became one more to be determined in a manner akin to a hearing on-the-papers but with the benefit and assistance of the parties being provided the opportunity to provide written closing submissions.
  5. [68]
    Directions were given to that effect thus affording the applicant a noticeably clear and open opportunity to present his case to this Tribunal with reference to not only his material filed but in reference to the material filed by the respondent. Moreover, by virtue of the directions I gave he will be afforded the benefit and opportunity to have, in advance of him preparing and providing his written submissions, read the written closing submissions to be provided by the respondent’s representative, such which may readily be expected to be similar to and follow the format and content of the Outline of Submissions but with greater clarity and specificity in terms of referencing the relevant documents now received as Exhibits in the proceeding. In that way the case against him will be presented with clarity and completeness such that the absence of an oral presentation of the evidence could not prejudice him.

Should however there still have been an oral hearing ?

  1. [69]
    This is effectively the question that arises out of the submissions made to me by the respondent’s representative in the hearing on 4 April 2024 and his referral to s 95 of the QCAT Act, Practice Direction 3 of 2013, and s 31 of the HRA.
  2. [70]
    In my opinion the answer to that question is ‘No’. Of course if it were ‘Yes’ then the election of the applicant to simply fail to appear at the hearing on 4 April 2024 would have necessitated an adjournment at the very least, or at worst a dismissal of the Application for Review.[16] The reason why it is ‘No’ is because, as I noted it earlier herein under s 19 of the QCAT Act, in considering and deciding the Application for Review this Tribunal has the functions of the decision-maker under the enabling Act, in this instance it being the WWCA; and under s 20 of the QCAT Act this Tribunal must hear and decide the matter by way of a fresh hearing on the merits.
  3. [71]
    Such must be read and construed in conjunction with s 229 of the WWCA which I have also noted earlier herein. That provision dictates the extent to which the decision-maker must afford the applicant the opportunity to know the information upon which the decision is to be made, and to afford the applicant the opportunity to make submissions about it. Subsection (5) therein provides a discretionary basis for such submissions to be oral, thus indicating that such may be solely in writing.
  4. [72]
    This provision thus mandates the minimum requirement for the effective merits review, by way of a fresh hearing, to be conducted by this Tribunal. There is nothing contained therein which dictates the requirement for an oral hearing. Moreover, to the extent the relevant material, including submissions, is considered ‘evidence’ for the purposes of a Tribunal hearing, it must not be overlooked that s 95 of the QCAT Act provides for evidence to be given ‘in writing’.
  5. [73]
    Nor in my opinion do the other provisions of the QCAT Act, or the associated Practice Direction, to which the respondent’s representative referred me, dictate the need for an oral hearing. If I have understood the reference to those provisions, the premise for it is that such provides for a mandatory requirement for cross-examination. Two things must be said about that.
  6. [74]
    Firstly, in terms of s 95 of the QCAT Act, whilst the respondent is a ‘party’ to this proceeding as provided for under s 40 of the QCAT Act, the respondent is not a party acting in an adversarial role pressing its case in defence of the correctness of the Decision. For that reason, in my opinion s 95, in particular s 95(1)(b), does not have the meaning the respondent’s representative seeks to impart upon it for the purposes of this proceeding and the respondent’s role within it.
  7. [75]
    Secondly, in terms of paragraph 3 of Practice Direction No 3 of 2013, whilst it is case in mandatory language in terms of the requirement for the respondent to ‘test the evidence’, in my opinion it of itself does not dictate the requirement for cross-examination within the setting of an oral hearing. In an ‘on-the-papers’ scenario, the applicant’s evidence provided by way of documentary material can still be tested by the respondent considering it and assessing its strengths and weaknesses with reference to any inconsistency within a document or relative to a different document provided by either the applicant or the respondent, and then an appropriate submission made about it. This goes also to the extent of any ‘submission’ that may be made in writing by the applicant.
  8. [76]
    Noting again the provisions of s 229 of the WWCA, and moreover noting the content of the ‘Reasons’ document given by the original decision-maker which describes the information before the respondent which arose from the application of s 229 of the WWCA,[17] this is precisely the means by which the decision-maker proceeded. The original decision maker did not conduct an oral hearing with the applicant and his ‘referees’ being presented for cross-examination. Standing in the shoes of the original decision-maker, in turn this Tribunal is permitted to proceed in the same manner if it considers in all the circumstances to be the relevant and appropriate way forward.
  9. [77]
    In my opinion the application of Practice Direction 3 applies only where the presiding Tribunal Member considers that cross-examination by the respondent of the applicant or any of his witnesses is necessary.
  10. [78]
    For these reasons I am not persuaded by the submissions from the respondent’s representative to the extent that they were made as to why an oral hearing should still be proceeded with so as to enable him to have conducted the requisite cross-examination.

Have the applicant’s human rights been contravened ?

  1. [79]
    That these leaves only the question of whether the absence of an oral hearing contravenes s 31 of the HRA beyond the extent permissible under s 13 of the HRA, an issue raised by the respondent’s representative in the hearing.
  2. [80]
    The main objective of the HRA is to protect and promote fundamental human rights. However the rights listed therein are not exclusive, nor are the rights protected thereunder absolute. They may be limited, but only as far as is reasonable and justifiable. In deciding whether a limit is reasonable and justifiable relevant factors include inter-alia the nature of the human right, the nature and purpose of the limitation, whether there are any less restrictive and reasonably available ways to achieve the purpose, the importance of the purpose of the limitation, the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right, and the balance between the last two points.[18]
  3. [81]
    That being said, all statutory provisions, as far as is possible consistent with their purposes, must be interpreted in a way that is compatible, or most compatible, with human rights.[19] Such includes the WWCA. That relevant and requisite interpretation is as I discuss it in the paragraphs that follow here. However, before embarking on this discussion, I pause to address a submission made to me on this issue by the respondent’s representative. He referred me to the decision of this Tribunal in SSJ v Director-General, Department of Justice and Attorney-General [2020] QCAT 252, in particular from paragraph [109] onwards therein. Whilst I appreciate the assistance from the respondent’s representative in referring me to relevant caselaw, in this instance that referral does not assist me. In my opinion whilst the learned Member therein properly identified issues for this Tribunal to be conscious of in terms of the HRA when making a decision under the WWCA in a review proceeding, his reasons do not give rise to any particular point of law relevant to the question as I have posed it in the heading of this section of the reasons and the premise under which it arises in this proceeding.[20] For that reason the decision is of no relevance.
  4. [82]
    Returning thus to the necessary discussion, firstly I turn to the question as to whether this is a ‘civil proceeding’ given that it is an administrative law review proceeding.
  5. [83]
    The term ‘civil proceeding’ is not defined in the HRA. But the answer to this question can readily be found by reference to judicial consideration of the equivalent of s 31 of the HRA in Victoria, namely s 24 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Victorian Charter). In that regard it has been said that the term ‘civil proceeding’ is to be given an autonomous interpretation capable of encompassing any legal process for the enforcement, vindication, determination or protection of a civil (as distinct from a criminal) right or obligation, noting it is not to be answered by reference to the provisions under which the proceeding is being conducted.[21] Thus, it may readily be accepted it is a civil proceeding to the extent such term is used in s 31 of the HRA.
  6. [84]
    Secondly therefore, the question then is whether s 31 of the HRA mandates that an ‘oral hearing’ is required. In my opinion, as I discuss it in the following paragraphs herein, it does not. It dictates nothing more than a ‘fair and public hearing’.
  7. [85]
    I deal firstly with the requirement for a ‘fair’ hearing. As I noted it earlier in these reasons this has a direct relationship to the question of whether the applicant has been, or is being, denied procedural fairness and my comments and observations earlier in that regard should also be considered relevant to this issue.
  8. [86]
    In addressing that issue, once again reference to the Victorian Charter is apposite. In that regard Forrest J expressed this view of the meaning of a ‘fair hearing’ in Knight v Wise:[22]

The right to a fair hearing is concerned with the procedural fairness of a decision. What fairness requires will depend on all the circumstances of the case. Broadly, it ensures a party has a reasonable opportunity to put their case in conditions that do not place them at a substantial disadvantage compared to their opponent. This principle is commonly known as the principle of equality of arms.

… Breach of the right to a fair hearing requires more than inconvenience….

The right to a fair hearing also includes or embraces the common law right of unimpeded access to the courts, an implied right to a reasonably expeditious hearing, duties to inquire, rights to legal advice and representation and the privilege against self-incrimination.

  1. [87]
    Related to the issues in this proceeding that gave rise to the decision and directions for which I gave orders, Forrest J also made these comments in terms of the issues of “ a reasonably expeditious hearing”:[23]

… All litigants must manage their court commitments around their personal affairs. Where this poses difficulties for self-represented litigants, courts can and do take positive steps to accommodate them. At times, this will include the ordering of an adjournment.

The reasonableness of any delay will depend on all the circumstances of the case. These will include the length of the delay and the reasons for the delay and, if the delay is the result of an adjournment, the reason for that adjournment. …

  1. [88]
    When also considering s 24 of the Victorian Charter, in reference to the seminal decision of the High Court relevant to the requirement for a fair hearing, namely the reasons of Mason CH and McHugh J in Deitrich v The Queen (1992) 177 CLR 292 at 300, in Victoria Police Toll Enforcement v Taha Tate JA observed:[24]

They recognised that what is required in a particular case to ensure that an accused has had a fair hearing will vary from case to case; there is no single exhaustive set of the aspects of a trial which will make it fair.

  1. [89]
    Thus, it may readily be observed that what fairness requires depends on all the circumstances of the matter under consideration. Such an issue arose for consideration by the High Court in Condon v Pompano wherein the following observation was made under the heading ‘Procedural fairness and the judicial process:[25]

The rules of procedural fairness do not have immutably fixed content. As Gleeson CJ rightly observed in the context of administrative decision-making but in terms which have more general and immediate application, “[f]airness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice”. To observe that procedural fairness is an essential attribute of a court’s procedures is descriptively accurate but application of the observation requires close analysis of all aspects of those procedures and the legislation and rules governing them.

Consideration of other judicial systems may be taken to demonstrate that it cannot be assumed that an adversarial system of adjudication is the only fair means of resolving disputes. But if an adversarial system is followed, that system assumes, as a general rule, that opposing parties will know what case an opposite party seeks to make and how that party seeks to make it. As the trade secrets cases show, however, the general rule is not absolute. There are circumstances in which competing interests compel some qualification to its application. And, if legislation provides for novel procedures which depart from the general rule described, the question is whether, taken as a whole, the court’s procedures for resolving the dispute accord both parties procedural fairness and avoid “practical injustice”.

  1. [90]
    As to what are factors relevant to the determination of ‘the practical content of fairness in the particular case’, in Roberts v Harkness the Victorian Court of Appeal identified the relevant factors:[26]

•  the nature of the decision to be made;

•  the nature and complexity of the issues in dispute;

•  the nature and complexity of the submissions which the party wishes to advance;

•  the significance to that party of an adverse decision (what is at stake); and

•  the competing demands on the time and resources of the court or tribunal.

  1. [91]
    To this the Court added one further factor with reference to the last sentence of the first paragraph in Condon v Pompano to which I referred and extracted in the last paragraph herein, observing:[27]

One of the key considerations in determining the content of fairness in a particular case is the statutory framework governing the decision-making process. This is most obviously the case with administrative decisionmakers whose powers are conferred by statute ….

  1. [92]
    When consideration is given to the analysis and reasoning of this issue to which I have just referred, and in particular the emphasised parts of that which I have extracted herein from the various Court’s reasons, my decision to deny the application his Second Application for an Adjournment and in turn that which followed being my directions given for the future conduct of the Application for Review is, in my opinion, consistent with that jurisprudence.
  2. [93]
    I say this on the basis of three aspects of this reasoning which in my opinion stand out.
  3. [94]
    The first is that stated in Roberts v Harkness as to one of the factors of what is ‘fairness in a particular case’, that being “the competing demands on the time and resources of the … tribunal”. This is entirely consistent with the reasoning of the High Court in Aon v ANU which I have already discussed at length earlier in these reasons. What it shows is, as I discussed with the respondent’s representative in the hearing, the need for balancing between the rights of the applicant and the needs of other users of this Tribunal’s limited resources.
  4. [95]
    The second also arises from Roberts v Harkness, namely the factors of  ‘the nature and complexity of the issues in dispute’ and ‘the nature and complexity of the submissions which the party wishes to advance’. Having read the material filed by both the applicant and the respondent in advance of the commencement of the hearing on 4 April 2024, in my opinion there is nothing in the nature or complexity of the issues or submissions that dictates the requirement for an oral hearing that cannot otherwise be addressed satisfactorily by way of written closing submissions.
  5. [96]
    The third is that stated in Condon v Pompano. In implementing this balancing exercise, whilst it might be said that the approach I have taken is ‘novel’ in terms of the subject matter of the Application for Review and the manner in which such an application has been traditionally dealt with and heard in this Tribunal, it is a novel approach that is expressly provided for by the QCAT Act as I have already discussed it earlier in these reasons when I considered the question as to whether the applicant had been denied procedural fairness.
  6. [97]
    In my opinion, there is nothing arising from my decision and directions by which it could be said the applicant has been denied a fair hearing. To delay the determination of the substantive application by a second adjournment would be, in my opinion, to unnecessarily delay the progress of the proceeding within the Tribunal in terms of meeting the object of efficiency as referred to in Aon v ANU, as well as objective of this Tribunal proceeding in a manner that is ‘fair, just, economical, informal and quick’ as mandated with the Objects of the QCAT Act. This is so particularly in the circumstances where the applicant already had been granted one adjournment, following which he made it very clear he did not have anything further to file and he requested the matter be listed for hearing, such being from which the inference could be taken he was ready to proceed. The only need for the adjournment was that the applicant was seemingly simply unable to manage his tribunal commitments around his personal affairs.
  7. [98]
    Thirdly, I turn to the requirement for a ‘public’ hearing. If the respondent’s representative’s reference to s 31 of the HRA was intended to suggest that the requirement for a public hearing meant an oral hearing, respectfully such a reference is misguided.
  8. [99]
    Under s 90 of the QCAT Act, save only in certain circumstances as dictated by subsection (2) therein, this Tribunal must conduct a hearing ‘in public’. Such is consistent with the requirements of s 31 of the HRA. But such must be read and construed in conjunction with s 19 and in turn s 32(2) of the QCAT Act, the latter which provides this Tribunal with a discretion to conduct all or part of a proceeding entirely on the basis of documents, with or without the parties, their representatives, or witnesses appearing at a hearing. In turn it is then s 32(3) that provides for and mandates the necessity and the extent to which the requirement of the proceeding be ‘public’. That being said, when the QCAT Act is properly construed, there is no impediment against this Tribunal conducting the determination of a proceeding without an oral hearing which would contravene the requirements of s 31 of the HRA.
  9. [100]
    All that being said, in terms of the issue as to whether the applicant’s human rights to a fair hearing has been contravened by my decision on the Second Application for Adjournment and my directions as to the future conduct of the Application for Review as a proceeding in this Tribunal to be determined effectively on-the-papers, in my opinion it does not result in the applicant being denied one of his fundamental human rights, and as such there is no need for consideration of any limitation in terms of s 13 of the HRA.

Conclusions

  1. [101]
    In my opinion it is not necessary for me to repeat by way of concluding remarks any of what I have already discussed in the reasons for reaching the conclusions I did and choosing to proceed as I did in determining the outcome of the Second Application for Adjournment and/or the conduct of the hearing on 4 April 2024 in the absence of the applicant, and in terms of the future conduct of the proceeding by way of the Directions I have given.
  2. [102]
    All that needs be said it to take note of the provisions of s 28 and s 32 of the QCAT Act to which I have referred earlier. In all respects in terms of the issues addressed in these reasons they must not be overlooked. Those provisions make it plainly clear that this Tribunal has discretion over the manner in which it conducts proceedings before it. The need for the exercise of that discretion was enlivened before me when the applicant chose to conduct himself and his case in the way he did by seemingly ignoring the requirements of this Tribunal to appear before me on 4 April 2024, or to otherwise contact the Tribunal Registry, in the conduct of his Application for Review as well as his Second Application for Adjournment.
  3. [103]
    The manner of such exercise was then dictated by the principles laid down by the High Court in Aon v ANU to which I have referred earlier, whilst also being conscious of the need to observe the rules of natural justice / procedural fairness but only to the extent necessary when balancing those principles with what Mason J had observed many years earlier in Kioa v West.
  4. [104]
    The circumstances as they have unfolded before this Tribunal in this proceeding are such that the manner in which I have directed the proceeding to continue is in all respects consistent with the objects of the QCAT Act and the functions of this Tribunal as they are expressed in s 3 and s 4 of that Act, and follows the reasoning and decision of the High Court in Aon v ANU.

Footnotes

[1]  For clarity, this was marked for identification in this proceeding as ‘MFI A’.

[2]  This was marked for identification in the proceeding as ‘MFI B’.

[3]  His reference to the ‘Form 40 filed on 24 May 2023’ is to the First Application for Adjournment including the amendment provided on 26 May 2023.

[4]  This was also marked for identification in this proceeding as ‘MFI C’.

[5]  There are many other provisions of the WWCA which are relevant to the decision to be made in terms of the substantive Application for Review, however it is not necessary to address these here because they relate to the making of the decision as compared to the decision-making process which is in effect in this Tribunal the hearing and its associated prior directions for the filing of documentary material.

[6] Aon Risk Services Australia v ANU (2009) 239 CLR 175,189, [25]. Footnotes omitted. Emphasis added.

[7]  Ibid,190 and 191,[26] and [27]. Footnoted omitted. Emphasis added.

[8]  Ibid,211,[93].

[9]  Ibid at 213;[98].

[10] Kioa v West (1985) 159 CLR 550, 584 and 585. Citations omitted.

[11]  In this regard consider the express obligation cast upon him under s 45 of the QCAT Act to ‘act quickly’ in any dealing relevant to the proceeding.

[12]  That e-mail address is the same address from which the applicant’s material was sent for filing in this proceeding on 7 March 2023 at 3:19 pm.

[13]  See for example Minister for Immigration & Multicultural & Indigenous Affairs v Bhardwaj (2002) 209 CLR 597, 602,[2] where the applicant had become ill, a case which has some similarities to the present on in terms of a late notification of the need for an adjournment, the referral of same to the presiding decision-maker, and the hearing proceeding in the applicant’s absence.

[14]  Exhibits 1, 2, and 3.

[15]  Exhibits 4 to 12.

[16]  Such which is permissible in certain circumstances under s 48 of the QCAT Act.

[17]  See Ex 1 pg’s BCS 1 to BCS 12.

[18]  HRA s 13(1). The factors for determining what is reasonable and justifiable are set out in s 13(2) of the Act.

[19]  Ibid s 48(1) & (2).

[20]  I should also pause further here and make one more observation for the benefit of any reader of these reasons. In the SSJ reasons the learned Member refers to a decision of this Tribunal in RPG v Public Safety Business Agency [2016] QCAT 331 seemingly as part of the discussion about the HRA, however on a proper reading of the learned Member’s reasons and noting the subject matter and outcome of that proceeding it is not related to an HRA issue. The learned Member's reference to it in the last paragraph of his reasons is in terms of a ‘Conclusion’ overall to the issues for consideration in SSJ. For this reason, no reference need be made to it.

[21] Secretary, Department of Human Services v Sanding (2011) 36 VR 22 per Bell at 259 and 260,[172]–[174].

[22] Knight v Wise [2014] VSC 76, at [36]-[38]. Footnotes omitted.

[23] Knight v Wise [2014] VSC 76, at [40] and [41]. Emphasis added.

[24] Victoria Police Toll Enforcement v Taha (2013) 49 VR 1 at 69,[205].

[25] Condon v Pompano (2013) 252 CLR 38 per Hayne, Crennan, Kiefel and Bell JJ at 99 and 100, [156] and [157]. Footnotes omitted. Emphasis added.

[26] Roberts v Harkness (2018) 57 VR 334 per Maxwell P, Beach and Niall JJA at 355,[49]. Footnotes omitted. Emphasis added.

[27]  Ibid at 355, [50]

Close

Editorial Notes

  • Published Case Name:

    DJB v Director-General, Department of Justice and Attorney General (No 1)

  • Shortened Case Name:

    DJB v Director-General, Department of Justice and Attorney General (No 1)

  • MNC:

    [2024] QCAT 174

  • Court:

    QCAT

  • Judge(s):

    Member Taylor

  • Date:

    08 Apr 2024

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
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
3 citations
Jump To
Cite 1 - (2009) 239 CLR 175
Cite 2 - (2009) 239 CLR 175
Cite 3 - (2009) 239 CLR 175
Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38
1 citation
Jump To
Cite 1 - (2013) 252 CLR 38
Dietrich v The Queen (1992) 177 CLR 292
2 citations
Jump To
Cite 1 - (1992) 177 CLR 292
Cite 2 - (1992) 177 CLR 292
Kioa v West (1985) 159 C.L.R 550
3 citations
Jump To
Cite 1 - (1985) 159 C.L.R 550
Cite 2 - (1985) 159 C.L.R 550
Cite 3 - (1985) 159 C.L.R 550
Knight v Wise [2014] VSC 76
3 citations
Jump To
Cite 1 - [2014] VSC 76
Cite 2 - [2014] VSC 76
Cite 3 - [2014] VSC 76
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
2 citations
Jump To
Cite 1 - (2002) 209 CLR 597
Cite 2 - (2002) 209 CLR 597
Roberts v Harkness (2018) 57 VR 334
2 citations
Jump To
Cite 1 - (2018) 57 VR 334
Cite 2 - (2018) 57 VR 334
RPG v Public Safety Business Agency [2016] QCAT 331
1 citation
Jump To
Cite 1 - [2016] QCAT 331
Secretary, Department of Human Services v Sanding (2011) 36 VR 22
2 citations
Jump To
Cite 1 - (2011) 36 VR 22
Cite 2 - (2011) 36 VR 22
SSJ v Director-General, Department of Justice and Attorney-General [2020] QCAT 252
2 citations
Jump To
Cite 1 - [2020] QCAT 252
Cite 2 - [2020] QCAT 252
Victoria Police Toll Enforcement v Taha (2013) 49 VR 1
2 citations
Jump To
Cite 1 - (2013) 49 VR 1
Cite 2 - (2013) 49 VR 1

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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