James v Director-General, Department of Justice and Attorney-General
[2024] QCATA 25
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- James v Director-General, Department of Justice and Attorney-General[2024] QCATA 25
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James v Director-General, Department of Justice and Attorney-General[2024] QCATA 25
James v Director-General, Department of Justice and Attorney-General[2024] QCATA 25
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | James v Director-General, Department of Justice and Attorney-General [2024] QCATA 25 |
PARTIES: | karen francis james (applicant/appellant) v director-general department of justice and attorney-general (respondent) |
APPLICATION NO/S: | APL194-23 |
ORIGINATING APPLICATION NO/S: | CML068-22 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 28 February 2024 |
HEARING DATE: | 16 February 2024 |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Traves |
ORDERS: |
|
CATCHWORDS: | APPEAL – LEAVE TO APPEAL – STATUTORY CONSTRUCTION – where applicant made oral request in a directions hearing for assistance pursuant to s 44(1)(b) of the QCAT Act – where Member deemed oral request to be an application under s 44(1)(b) – where Member directed to file and exchange submissions in relation to the request – whether error of law to require an application – whether default position should be that person can ‘help’ unless an exception or deviation from that position justified. Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 44, s 122, s 142 Bhandari v Morgan Conley Solicitors [2022] QCAT 282 Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 |
APPEARANCES & REPRESENTATION: | 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]On 20 March 2023, in a Directions Hearing conducted in the course of an administrative review of a decision of the Director-General, Department of Justice and Attorney-General – Blue Card Services, the applicant, Ms James asked whether Carissa Inglis, an advocate from Queensland Foster and Kinship Centre (QFKC), ‘be allowed to speak as well at the proceedings’.
- [2]Ms Inglis then addressed the Tribunal and said that QFKC had been exploring ways in which it could support not only Ms James (who identified as aboriginal and was involved in a blue card review as well as a protracted child protection matter as carer), but also other carers in QCAT hearings who experienced a level of difficulty in being able to represent themselves. Ms Inglis suggested she might assist Ms James pursuant to s 44(1)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
- [3]Ms Inglis had previously been granted leave to represent Ms James under s 43 of the QCAT Act but, at the request of Ms Inglis, that direction was amended to provide that Ms Inglis be granted leave to act as a support person for Ms James.
- [4]The Tribunal Member presiding over the Directions Hearing asked Ms Inglis to clarify what she anticipated doing for Ms James at the hearing. Ms Inglis responded as follows:
So my experience in the last hearing was that I was in was that I wasn’t able to speak in any capacity at all, so there were times where I felt that Child Protection information was being misunderstood but I wasn’t able to speak up and provide clarification in particular areas or where the carer was becoming really confused with the questions that were being put to him – that I wasn’t, you know able…to assist him and no time to understand what was being asked of him. So I guess what I’m asking in these proceedings – I don’t feel that I have the expertise to be able to represent Ms James, but I do feel that I have the ability to be able to support her in, you know, being able to help her put questions to the – her witnesses or – and help her to understand at times that she’s getting confused – what is being asked of her, so that would be what – I would be advocating through a process…rather than representing…if that …makes sense.[1]
- [5]The learned Member said that what was being described fell between section 43 (representation) and s 44 (use of interpreters and other persons). Further, that to come within s 44(1)(b) she would need to be satisfied that Ms Inglis “had appropriate cultural or social knowledge and experience”. The Member then said she was not unsympathetic to the notion that Ms Inglis ‘doesn’t have the responsibility of representation but somehow speaks on behalf of the applicant, Ms James’. The Member then asked Ms Saunders, who appeared for the respondent, whether she had any submissions to make on s 44(1)(b) and its application to this scenario. Ms Saunders replied that she would need to seek formal instructions with respect to their office’s position on Ms Inglis appearing at the hearing under s 44(1)(b) and that an application would need to be made by Ms Inglis and Ms James.
- [6]The Member then deemed an application to have been made and required both parties to file submissions addressing the issue of whether Ms Inglis could appear in the capacity of a person under s 44(1)(b) of the QCAT Act.
- [7]On 31 May 2023, after considering those submissions, the Tribunal made directions in the following terms:
- The two-day Tribunal Hearing listed at 09:30am on 10 July 2023 is vacated.
- The matter is listed for a two-day Tribunal Hearing at a date and time to be advised.
- The application for Carissa Inglis to be appointed to assist Karen Francis James pursuant to s 44(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) is refused.
- Carissa Inglis may attend all future Tribunal proceedings in CML068-22 in the capacity of a support person only.
- [8]On 26 June 2023 Ms James, the applicant in the blue card review, filed an application for leave to appeal directions 3 and 4 of the Tribunal Directions dated 31 May 2023 on the basis the Member had made an error of law.
- [9]The error of law was said to be that s 44(1)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) had been incorrectly construed as requiring an application by the person seeking to use an interpreter or other person. It was submitted that s 44 was drafted in a ‘general permissive nature’ in which the making of an application is not contemplated. Alternatively, it was submitted, the onus to make an application was incorrectly applied. The words ‘Unless a tribunal directs otherwise…’ indicate, it was submitted, that the subsequent content is the default state in the absence of the Tribunal’s intervention, that is, the onus is on the other party to show why a person does not fulfil the requirements set out in s 44.
- [10]Ms James submitted that the appeal be allowed and the Member’s directions be set aside.
- [11]The respondent referred to its earlier submissions with respect to the substantive issue of the interpretation of s 44(1)(b) and whether Ms Inglis could ‘help’ or ‘represent’ the applicant pursuant to s 44(1)(b). The respondent submitted it did not have a particular position with respect to the appellant’s appeal point. The respondent’s submissions addressed the question of whether Ms Inglis fell within the meaning of s 44(1)(b) of the QCAT Act and concluded there was no basis (or evidence) to suggest that it would be necessary or desirable for Ms Inglis to make the proceeding intelligible to her. Further, it was submitted, that other legislative provisions (ss 28 and 29 of the QCAT Act) allow the Tribunal to ensure the proceedings are comprehensible and accessible to parties.
Leave to appeal
- [12]Leave to appeal is required to appeal a decision that is not the Tribunal’s final decision in a proceeding.[2] The interlocutory decision made with respect to Ms Inglis’ capacity to help Ms James in the proceeding was not a final decision in the proceeding because it did not finally dispose of the rights of the parties, although it did, of course, conclude the fate of the application made pursuant to s 44(1)(b).[3]
- [13]In determining whether to grant leave, the Appeal Tribunal must be satisfied that, relevantly:
(a) there is a reasonably arguable case of error in the primary decision;
(b) there is a reasonable prospect that the appellant will obtain substantive relief; and
(c) leave is needed to correct a substantial injustice caused by the error; or
(d) there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.
- [14]The respondent did not address the issue of leave. The applicant submitted that if the appeal grounds were established, relief was available under ss 142 and 143, as ‘the legal error will substantially impact the proceeding’.
- [15]I am satisfied there is a reasonably arguable case of error in the approach to s 44. In particular, it is reasonably arguable that s 44, properly construed, does not require an application because the default position is that a person may help a party or witness unless the Tribunal directs otherwise. I am also satisfied that the interpretation of s 44 is of general importance in clarifying the circumstances in which a person may be helped in a proceeding. I also accept the applicant’s submissions, that whether Ms James is entitled to assistance as contemplated by s 44(1)(b), may also impact the proceedings.
- [16]Accordingly, I grant leave to appeal.
Statutory framework
- [17]Section 44 of the QCAT Act provides:
44 USE OF INTERPRETERS AND OTHER PERSONS
(1) Unless the tribunal directs otherwise, a party to a proceeding or a witness may be helped in a proceeding by—
(a) an interpreter; or
(b) another person necessary or desirable to make the proceeding intelligible to the party or witness, including, for example, a person with appropriate cultural or social knowledge and experience.
(2) Without limiting subsection (1), the tribunal may arrange for an interpreter or another person to help a party or witness.
(3) In this section—
"interpreter" includes a person who interprets signs made or other things done by a person who can not speak or can not speak clearly enough to take part in a proceeding.
Consideration
- [18]Section 44(1)(b) provides that a party or witness may be helped in a proceeding by ‘another person’ where (the elements):
- that person is necessary or desirable;
- to make the proceeding intelligible to the party or witness.
- [19]These requirements are, in effect, elements which must be satisfied before a party or witness may be helped. Attention is directed to the particular person who might help, “that person”. Properly construed, the section provides that if “that person” is “necessary or desirable” to “make the proceeding intelligible to the party or witness”, then the party or witness is entitled to be helped by that person, subject to the discretion of the Tribunal to direct otherwise. The use of the word “may” in the chapeau does not of itself grant a discretion to the Tribunal whether to permit “that person” to assist, or not. The context of the word “may”, in particular the requirements to satisfy the subsection which follow, demonstrate not only that “may” is an empowering word but indeed indicates circumstances where the power must be exercised. As Windeyer J said in Finance Facilities Pty Ltd v Federal Commissioner of Taxation[4] Windeyer J held:
While Parliament uses the English language the word "may" in a statute means may. Used of a person having an official position, it is a word of permission, an authority to do something which otherwise he could not lawfully do. If the scope of the permission be not circumscribed by context or circumstances it enables the doing, or abstaining from doing, at discretion, of the thing so authorized… Here the scope of the permission or power given is circumscribed. Conditions precedent for its exercise are specified as alternatives. The question then is, must the permitted power be exercised if one of those conditions be fulfilled?
This does not depend on the abstract meaning of the word "may" but of whether the particular context of words and circumstance make it not only an empowering word but indicate circumstances in which the power is to be exercised — so that in those events the "may" becomes a "must". Illustrative cases go back to 1663…[5]
- [20]The Tribunal retains a discretion to “direct otherwise”. The section is silent on the circumstances in which that might occur, but it is not difficult to think of some examples. The person helping may cease to be of help; the person may be difficult, and a decision having been made to permit assistance, the Tribunal may decide it is no longer necessary or desirable.
- [21]Here, the Member did not give reasons for her decision. She was not obliged to unless a party had made a request for written reasons, which did not occur.[6] The order made by the Member was that the application pursuant to s 44(1)(b) be refused. The order did not take the form of a direction that, notwithstanding s 44(1)(b) having been satisfied, the Tribunal directs otherwise; that is, directs that Ms Inglis not assist. In the absence of reasons, I conclude that the Member was not satisfied that the elements of s 44(1) applied. She was not in error for having made an order on that basis.
- [22]The appeal was not argued on the basis that that finding was erroneous.
- [23]I appreciate that Ms Inglis was well motivated in seeking to help Ms James. It would be useful, in the future, for a person seeking to have assistance or indeed to assist, to address the requirements of the section by way of a short affidavit, for example, that deals with the following:
- whether the proceedings are intelligible to the party or witness, and if not, why not, and in what ways;
- why it is necessary, or desirable, that the Tribunal permit the helper to assist the party or witness; and
- how and the manner in which the helper will make the proceeding intelligible to the party or witness.
- [24]Often something short of an affidavit may be sufficient. But there must be something upon which the Tribunal can determine that the elements are satisfied. In terms of identifying how and the manner in which the helper can assist, the section refers to – appropriate cultural and social knowledge and experience. But that is just an example. There may be many other ways in which the helper can assist, such as experience with the proceedings or procedures of the Tribunal.
- [25]A filed application, as such, is not in my view required under s 44(1). An oral request would suffice. Moreover, the Tribunal may act on its own volition to permit a ‘helper’. But, one way or another, the matter must attract the consideration of the Tribunal. The easiest way is to ask. The alleged error was that the Member required an application. But the Member treated the oral application as an application in any event. If there was an error, then it did not affect the outcome.
- [26]I have inferred that the Member was not satisfied that the elements of s 44(1)(b) were satisfied. The appeal was not argued on the basis that such a finding was erroneous.
- [27]In the circumstances, I am not satisfied that there was an error material to the decision. The appeal is dismissed.