Brisbane City Child Care Pty Ltd v Kadell & Anor

This matter concerned the proper construction of the power to summarily dismiss an application for judicial review pursuant to s 48(1)(a) of the Judicial Review Act 1991 on the basis that it was “inappropriate” for the proceedings to continue or for the application or claim to be granted. In granting leave to appeal, under s 48(5) of the Act, the Court held that the failure to join a third party to the proceeding did not render the application “inappropriate” in circumstances where the relief ultimately sought reflected a dispute confined to the applicant and respondents.

Mullins JA, Ryan and Wilson JJ

1 September 2020

Section 48(1)(a) of the Judicial Review Act 1991 (“the JR Act”) permits the Court to summarily dismiss an application for judicial review “if the court considers that … it would be inappropriate … for proceedings in relation to the application … to be continued; or to grant the application or claim …”. [49]. Leave to appeal pursuant to s 48(5) is required in order to appeal against such a summary dismissal.

The applicant is the owner and operator of a child care centre for which it has a service approval issued pursuant to the Education and Care Services National Law (Queensland) (“the National Law”). [2]. It entered into a contract for the sale of the child care centre business to another business. [4]. As required under the National Law, the applicant and purchaser jointly applied to the Regulatory Authority for consent to the transfer of the service approval to the purchaser. [5]. The Authority consented to the transfer, but imposed conditions (the first decision). [6]–[10]. The purchaser was dissatisfied with the conditions and sought to terminate the contract. The Regulatory Authority subsequently decided to repeal the first decision, as the purchaser had withdrawn from the process (the second decision). [12].

The applicant applied for judicial review of the Regulatory Authority’s decisions. The purchaser was not joined to the proceedings ([13]), which caused the primary judge to raise concerns about the application. Her Honour was concerned that the proceeding lacked utility, as the purchaser was not a party, and that there was potential for different decisions on the same questions of law because of this. [28]–[29]. In response, the applicant narrowed its application, limiting the relief sought to a declaration that the Regulatory Authority had sought to impose conditions on a consent to transfer that were beyond power. [21]. The primary judge determined, however, that it was appropriate to summarily dismiss the proceeding under s 48(1)(a) of the JR Act, as: the applicant might still bring subsequent contractual proceedings against the purchaser; the declaration would amount to an advisory opinion; and, it was not inevitable that the Regulatory Authority would impose the same conditions on a new joint application or that another purchaser may not agree to the same sale contract. [32]–[33].

In determining the applicant’s application for leave to appeal under s 48(5) of the JR Act against the primary judge’s decision, the Court of Appeal (Mullins JA, Ryan and Wilson JJ) considered it was not necessary to be “prescriptive about the circumstances that will generally warrant the grant of leave” under s 48(5). It was necessary to consider the factors relied upon by the applicant in this particular case. [47].

This required the court to consider what circumstances would justify summary dismissal of a judicial review application as “inappropriate” pursuant to s 48(1)(a). [49]–[55]. Section 48(1)(a) was not constrained by the other grounds for summary dismissal in s 48(1) and “should operate fully according to its terms which makes it subject only to the constraint that the inappropriateness relates either to the continuation of the proceeding or the granting of the application”. It could be used if error by the decision-maker was demonstrated, but there was “good reason for otherwise not allowing the proceedings to continue or not granting the relief sought”. Such “good reason” included: where no practical consequences would flow from the outcome; there is an alternative practicable or preferable means for addressing the applicant’s complaint; or, where the court would exercise its discretion to refuse the relief. [55]. Their Honours concluded that:

“It is sufficient to say that it will include the category of case where there may have been an error, but the circumstances in which the decision was made and/or the subsequent events or the circumstances of the parties’ ongoing relationship do not warrant addressing in a proceeding under the Act whether there was error by the decision-maker.” [55].

Given the narrower declaration ultimately sought by the applicant, their Honours considered that the primary judge had erred in exercising the power under s 48(1)(a). [56]. Seeking the narrower declaration confined the issue to one between the applicant and the Regulatory Authority. [57]. It was not an advisory opinion, as “there was a real dispute between the parties … as to the powers of the Authority on a consent to a transfer of the service approval … that would have continuing significance for the applicant who was seeking to sell the child care centre”. [59]. Therefore, there was utility in the court considering whether to grant the narrower declaration and the decision to dismiss the proceeding summarily was in error. [60].

In the circumstances, the erroneous summary dismissal of the matter had caused “substantial injustice” to the applicant. In the Court’s view, “[t]hat injustice in the circumstances of the ongoing relationship between the parties and the fact that there is a substantive issue between the parties which needs to be determined justify the grant of leave to appeal”. [65].  

In the result, leave to appeal was granted, the appeal was allowed with costs and the matter was remitted for hearing. [69].

S Walpole