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  4. Louis Van Den Dreisschen v Director General, Department of Justice and Attorney-General - [2021] QCATA 114

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Louis Van Den Dreisschen v Director General, Department of Justice and Attorney-General[2021] QCATA 114

Louis Van Den Dreisschen v Director General, Department of Justice and Attorney-General[2021] QCATA 114

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Louis Van Den Dreisschen v Director General, Department of Justice and Attorney-General [2021] QCATA 114

PARTIES:

Louis Van Den DreisSchen

(applicant/appellant)

v

Director-General, Department of Justice and Attorney-Gneral

(respondent)

APPLICATION NO:

APL144-21

ORIGINATING

APPLICATION NO:

CML336-20

MATTER TYPE:

Appeals

DELIVERED ON:

17 September 2021

HEARING DATE:

21 July 2021

HEARD AT:

Brisbane

DECISION OF:

Senior Member Howard

ORDERS:

  1. The application for an interim order is refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – OTHER MATTERS – OTHER CASES – where the appellant sought a stay order and interim orders – where the appellant alleges the directions of the Appeal Tribunal ought to be stayed – whether the Appeal Tribunal should exercise its discretion under s 58 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – where the application was refused

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

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

Day v Humphrey [2017] QCA 104

Hessey-Tenny v Jones [2018] QCATA 131

APPEARANCES &

REPRESENTATION:

Applicant:

Mallory J, solicitor of the Aboriginal and Torres Strait Islander Legal Services (Qld) Ltd

Respondent:

Taylor D, counsel on behalf of Blue Card Services

 

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

REASONS FOR DECISION

  1. [1]
    This appeal proceeding arises out of a review of a decision made under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (the WWC Act)[1] by Chief Executive DJAG (Blue Cards Services), which has not yet been finally determined.
  2. [2]
    At the conclusion of a compulsory conference, a tribunal member directed that a preliminary question be determined before the final hearing (the first directions). A different Member subsequently vacated that direction, and made directions requiring the parties to file their evidence and submissions for a final hearing; and listed the proceeding for a final hearing (the second directions).
  3. [3]
    Mr Van Den Dreisschen filed an application for leave to appeal or appeal the second directions in so far as the Tribunal vacated the first directions for the preliminary question be determined. He also filed an application for an interim order, which in effect seeks a stay of the direction sought to be appealed and an interim order to stay the effect of the balance of the tribunal’s second directions. I made orders refusing the application for an interim order. Mr Van Den Dreisschen has requested my reasons for the decision. I now provide them.
  4. [4]
    I observe at the outset that the appeal can only proceed if leave to appeal is granted, because the order sought to be appealed is not a final order of the tribunal.[2]

Application for a stay order and an interim order

  1. [5]
    Section 145(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act)[3] provides that starting an appeal does not affect the operation of the decision appealed. Section 145(2),[4] however, provides that the tribunal may make an order staying the operation of the order pending the determination of the appeal. Further, s 58 provides for the making of interim orders,[5] relevantly as follows:

58 Interim orders

  1. (1)
    Before making a final decision in a proceeding, the tribunal may make an interim order it considers appropriate in the interests of justice, including, for example-
  1. (a)
    to protect a party’s position for the duration of the proceeding; or
  1. (b)
    to require or permit something to be done to secure the effectiveness of the exercise of the tribunal’s jurisdiction for the proceeding.

…

  1. [6]
    The President of the Queensland Civil and Administrative Tribunal (QCAT) held in Hessey-Tenny v Jones,[6] that in circumstances when leave to appeal is required and has not yet been granted, s 145(2) of the QCAT Act does not provide power to order a stay of the operation of the decision sought to be appealed.[7] However, he held that s 58(1) is sufficient to confer jurisdiction on the tribunal to allow a stay of a primary order where leave to appeal has not yet been granted.[8]
  2. [7]
    He considered that if a stay order is made pursuant to s 58 pending determination of an application for leave to appeal,[9] exceptional circumstances must exist. Whether there are exceptional circumstances must be considered in addition to the conventional principles for the granting of a stay order.
  3. [8]
    The conventional principles for considering whether to grant a stay order may be summarised as follows:
    1. (a)
      whether a reasonably arguable case on appeal has been demonstrated;
    2. (b)
      whether a refusal to grant a stay application would cause a material detriment to the applicant for the stay;
    3. (c)
      whether the balance of convenience favours the granting of a stay.[10]
  4. [9]
    In respect of the application seeking an interim order staying the effect of the balance of the directions in the second directions that are not sought to be appealed, s 58 of the QCAT Act also applies.
  5. [10]
    Here, Mr Van Den Dreisschen seeks an interim order to the effect that the second directions be stayed including to the extent that they required the parties to file their material to be relied upon and for the proceeding to be listed for final hearing, pending determination of the appeal proceeding.
  6. [11]
    He submits that the interim order should be made because his appeal sought the return of the matter to the tribunal to determine the preliminary question. He contends that if he is successful on the preliminary question, the proceeding will be at an end without the need for a final hearing. He submits that in the absence of an interim order, the appeal proceeding is undermined.
  7. [12]
    The preliminary point relates to Mr Van Den Dreisschen’s contention that Blue Card Services failed to correctly apply the WWC Act, in that it was not permitted by law to issue a negative notice against him. His grounds of appeal are unclear from the application for leave to appeal. In submissions dated 8 July 2021, he asserts that they are twofold: first, the presiding member failed to make a decision regarding a question of law which she was obliged to consider; and second, the presiding member failed to correctly apply the QCAT Act by not applying its objects in making the decision.
  8. [13]
    Mr Van Den Dreisschen says he will be disadvantaged if an interim order is not made because the preliminary legal point is a significant issue of law which may lead to a decisive outcome and that to deny him the opportunity to pursue it is a denial of procedural fairness. Further, he contends that the substantive decision may be made without consideration of the preliminary issue; that there is no disadvantage to Blue Card Services if the interim order is granted; and if an interim order is not made, it has the potential to render any successful appeal nugatory. The latter is also advanced as exceptional circumstances said to support the granting of the order, in that the review may proceed to final hearing before the appeal is determined.
  9. [14]
    Blue Card Services contend that no error by the tribunal in making the order sought to be appealed has been alleged or made. Therefore, it submits that a reasonably arguable case has not been advanced by Mr Van Den Dreisschen. It further argues that the direction made is consistent with the objects of the QCAT Act, and that the directions sought now to be stayed provide for the final hearing of the review in a timely way. It submits that there is no basis for the assertion that the tribunal in determining the review on its merits will be at liberty to refuse to consider the legal argument sought to be made (and alleged by Mr Van Den Dreisschen to resolve the proceeding). It contends that there is no detriment to the applicant if the application for an interim order is refused.

Should an interim order be made?

  1. [15]
    In relation to the proposed grounds of appeal, there are several issues. The tribunal has not yet determined the review proceeding. Therefore, it is neither apparent how the presiding member (that is, the presiding member of the tribunal as constituted for the proceeding) has failed to make a decision on a question of law, nor how the presiding member has failed to apply the objects of the QCAT Act. To the extent that the grounds are intended to convey that the member who made the second directions failed to do so, directions may be made by the tribunal (as constituted for the proceeding or, as here, by a legally qualified member) at any stage in a proceeding as may be necessary for the speedy and fair conduct of the proceeding.[11]
  2. [16]
    Further, in referring to the objects, Mr Van Den Dreisschen does not, in any event, advance any argument that relates the objects of the QCAT Act to any error in the tribunal’s decision to vacate the direction about determination of the preliminary point. I note that there are no reasons for decision available for the direction sought to be appealed.
  3. [17]
    The review proceeding has been listed for final hearing. It was not for the tribunal in making procedural directions to determine the question of law sought to be agitated by Mr Van Den Dreisschen. The listing of the proceeding for hearing of the proceeding would seem to further the objects of dealing with the matter in a way that is, among other things, fair and expeditious.[12]
  4. [18]
    In a review proceeding, the purpose of the review is to produce the correct and preferable decision.[13] The tribunal must hear and decide a review by way of a fresh hearing on the merits.[14] In determining the proceeding, the tribunal may confirm or amend the decision; set aside the decision and substitute its own decision; or set aside the decision and return the matter for reconsideration to the original decision-maker, with directions.[15]
  5. [19]
    Having regard to the legislative scheme, in the event that a preliminary point is determined, that will not dispose of the proceeding. The review must be determined in order for the tribunal to exercise its function. Indeed, given the prescribed manner in which a review must proceed, it is not apparent that a decision on a preliminary point would or could bind the tribunal, as constituted for the review, in reaching the correct and preferable decision.[16] The tribunal determining the review must consider the relevant matters afresh and make its own decision on the review.[17]
  6. [20]
    To the extent that procedural fairness appears to be raised as a ground in asserting detriment, the argument is misconceived. Mr Van Den Dreisschen is not prevented from pursuing the argument he seeks to advance: he may properly do so at the review hearing. The Tribunal must observe procedural fairness in deciding the proceeding.[18] The two most commonly accepted obligations of the flexible concept of procedural fairness are the fair hearing rule and the rule against bias. How procedural fairness is said to be relevant to detriment, as argued here, is not apparent.
  7. [21]
    Of course, I am not determining the appeal proceeding, but on a preliminary consideration, it is difficult to see how the proposed grounds of appeal have merit.
  8. [22]
    Also with the matters explained in mind, Mr Van Den Dreisschen’s other submissions cannot be accepted. There is no basis for the assertion that he is disadvantaged in the review being finally determined. If the legal argument on the statutory construction point sought to be advanced as the preliminary point as made in the review proceeding, it must be considered by the tribunal in making the correct and preferable decision. Further, even if he succeeds in the appeal proceeding in respect of the direction setting aside the preliminary hearing, the review will need to be determined by the tribunal for the legal argument to be considered. I accept the submissions of Blue Card Services that the most expeditious manner of having the point determined is achieved by the early determination of the application for review.
  9. [23]
    For the reasons explained, the balance of convenience does not favour the granting of a stay or interim order. Failure to grant the order does not render the appeal proceeding nugatory. Nor is there any basis to conclude that there are exceptional circumstances. Therefore, I am not satisfied that the interests of justice require that a stay be granted in respect of the decision sought to be appealed.
  10. [24]
    Further, there is no basis upon which the balance of the directions in the second directions should be the subject of an interim order, staying their effect. Doing so would not serve to protect Mr Van Den Dreisschen’s position, nor secure the effectiveness of the exercise of the tribunal’s jurisdiction.

Orders

  1. [25]
    Accordingly, I make orders dismissing the application for an interim order.

Footnotes

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

[2]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(3)(a), (b) (QCAT Act). 

[3]Ibid, s 145(1).

[4]Ibid, s 145(2).

[5]Ibid, s 58(1)(a)–(b).

[6][2018] QCATA 131.

[7]QCAT Act s 145(2).

[8]Ibid, s 58(1).

[9]Ibid, s 58.

[10]Day v Humphrey [2017] QCA 104.

[11]QCAT Act s 62(1) and (7).

[12]Ibid, s 3(b).

[13]Ibid, s 20(1).

[14]Ibid, s 20(2).

[15]QCAT Act s 24(1).

[16]Ibid, s 20.

[17]Ibid, s 20.

[18]Ibid, s 28.

Close

Editorial Notes

  • Published Case Name:

    Louis Van Den Dreisschen v Director General, Department of Justice and Attorney-General

  • Shortened Case Name:

    Louis Van Den Dreisschen v Director General, Department of Justice and Attorney-General

  • MNC:

    [2021] QCATA 114

  • Court:

    QCATA

  • Judge(s):

    Senior Member Howard

  • Date:

    17 Sep 2021

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
Day v Humphrey [2017] QCA 104
2 citations
Jump To
Cite 1 - [2017] QCA 104
Cite 2 - [2017] QCA 104
Hessey-Tenny v Jones [2018] QCATA 131
2 citations
Jump To
Cite 1 - [2018] QCATA 131
Cite 2 - [2018] QCATA 131

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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