and Raymond Hoser v Department of Sustainability and Environment (No 2)

[2014] VSCA 346

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2012 0081
RAYMOND HOSER	Applicant
v
DEPARTMENT OF SUSTAINABILITY AND ENVIRONMENT (NO 2)	Respondent

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JUDGES:	REDLICH, TATE and SANTAMARIA JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 November 2014
DATE OF JUDGMENT:	19 December 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 346
JUDGMENT APPEALED FROM:	Hoser v The Department of Sustainability and Environment (Occupational and Business Regulation) [2012] VCAT 264

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ADMINISTRATIVE LAW – Orders sought following setting aside of orders made by Victorian Civil and Administrative Tribunal – Whether costs of proceedings in Tribunal should be ordered – Application to reinstate licences – Orders requested beyond power and refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	The applicant appeared in person
For the Respondent	Mr C J Horan	Victorian Government Solicitor

REDLICH JA

TATE JA
SANTAMARIA JA:

1. On 5 September 2014, this Court made orders and delivered its reasons for judgment in the substantive proceedings in this matter.[1]  The orders of the Court on that date were, in substance, that the appeal was granted;  that the orders of the Victorian Civil and Administrative Tribunal (‘Tribunal’) affirming the respondent’s suspension and cancellation of licences, an approval and an authorisation held by the applicant were set aside;[2]  and that the respondent pay the applicant’s costs of the appeal.

   [1]Hoser v Department of Sustainability and Environment (Occupational and Business Regulation) [2014] VSCA 206 (‘Reasons for Judgment’).

   [2]The various licences and authorisations held by the applicant are set out in the judgment:  Reasons for Judgment, [9].  For the sake of brevity, in this judgment we will refer to those licences and authorisations as ‘the applicant’s licences’.

1. The background to the proceedings and our reasons for those orders are contained in that judgment.

1. The applicant, who was self-represented throughout the proceedings before this Court, was not present at court on 5 September 2014 at the time orders were pronounced.  The records of the Court show that he was notified.  He has in an affidavit deposed that he was not notified.

1. On 12 September 2014, the applicant lodged a summons with this Court seeking further orders.  That summons was not accepted by the Registry for filing, but upon perusal of the summons we accepted that the issues raised by the summons justified a further hearing.

1. In his summons, the applicant sought the following orders:

1.Full costs (including legal costs such as all legal bills for solicitors and barristers, witness costs, flight costs, accommodation, etc, for expert witnesses and the like) and interest be awarded in favour of the appellant in the VCAT matter of the hearing relevant to this appeal in 2011 and 2012 at VCAT, including compensatory losses arising from the time spent by the applicant preparing documents and briefing lawyers as opposed to normal income-producing activities.  These including all costs associated with the prosecution of the VCAT matter commencing August 2011 and concluding in 2012.

2.An order by the court that that the order made on 5 September 2012, was not intended to place the applicant outside of the law, by means of an order when he was not present to receive it and taken to have immediate effect.

3.The three permits or licenses subject of the proceedings are ordinarily renewed as of right, the only potential impediment, being the non-lodgement of a wildlife return in the first fortnight of April in the most recent calendar year.  As this was done on 12 April 2014, and the appellant submitted a formal application for renewal on the evening of 5 September 2014, the court orders that all three permits/licenses be re-issued retrospectively to 1 April 2014.

4.The court orders that the appellant is treated no differently to any other wildlife demonstrator by the DEPI and has no conditions applied on him that are not applied and enforced on others.

5.The court orders that the original two judgements of VCAT subject to this appeal as posted on the world wide web, contain the following statement placed prominently in large bold font at the top of each.

This judgement was successfully appealed on 5 September 2014.  The Appeal Court found that a number of statements within this judgment are false.  Furthermore adverse claims made against Mr Raymond Hoser are not true.  The statements in any way alleging Mr Hoser has no meaningful expertise with regards to reptiles, is criminally reckless with safety to the extent that he has recklessly endangered lives and is a serial law breaker are not true.  The same applies to statements within the judgement by the judge about so-called ‘dry bites’ and falsely alleged venom regeneration by devenomized snakes.  It would be dangerous for anyone to believe the statements made with this regard by the judge.  This statement is not to be removed from the judgement and must be published with it, or any parts quoted within.

6.The appellant is granted the right to summons the parties to appear before this court in the event that the respondent does not abide by the orders of the court and/or pay due costs in a timely manner, this being within 4 weeks of being served any bills for costs, or in any other way fails to abide by the judgements of this court or the spirit of them.

1. The first obstacle faced by the applicant is the fact that this Court made orders in the proceeding on 5 September 2014.  The orders of the Court were authenticated and entered shortly after the hearing on that day.  The applicant seeks to invoke the slip rule.[3]  However, the orders sought are not intended to correct mistakes or omissions in the orders made on 5 September.  The orders are ‘beyond recall’,[4] having accurately reflected the intention of the Court at that time.[5] 

   [3]Supreme Court (General Civil Procedure) Rules 2005 r 36.07.

   [4]Bailey v Marinoff (1971) 125 CLR 529, 530 (Barwick CJ).

   [5]Ibid 539 (Gibbs J).

1. To the extent that this Court has the inherent jurisdiction to make supplemental orders (that is, orders in addition to those already pronounced) for the reasons that follow we would not do so here.

Proposed order 1 — costs below

1. The applicant seeks an order, in effect, for the costs of the Tribunal hearing below.  This submission is based on a misunderstanding of the effect of our orders of 5 September 2014.

1. The reasons for our orders are set out in the judgment and we do not propose to expand upon those except to say the following.  In brief, we held that the Tribunal erred in several of its findings such that its decision to affirm the respondent’s suspension and cancellation decisions should be set aside.[6]  Therefore, we ordered that the orders of the Tribunal affirming the respondent’s decisions and awarding costs to the respondent be set aside.

   [6]Reasons for Judgment, [30]–[31].

1. As we said in the judgment,[7] while we would ordinarily have remitted the matter for reconsideration by the Tribunal, in the circumstances there was no utility in doing so, as the licences subject of the proceedings had expired.  This led the applicant to seek further orders in his summons.

   [7]Ibid [76]–[77].

1. We did not make an affirmative order that the applicant’s licences should not
   

   [8]Osland v Secretary, Department of Justice (No 2) (2010) 241 CLR 320, 332–3 (French CJ, Gummow and Bell JJ).

   [9]Reasons for Judgment, [76].

   be cancelled. As the High Court has said,[8] and as we noted in the judgment,[9] in an appeal from the Tribunal pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1986, the matter the subject of an appeal would ordinarily be remitted to the Tribunal.  We held that the Tribunal erred in its reasoning for its decision.  However, it would have been open to the Tribunal on remitter, having corrected those errors that we identified, to still conclude that the respondent’s decision to cancel the applicant’s licences should be affirmed.

1. The discretion to cancel an authorisation is enlivened under s 28F of the Wildlife Act 1975 when ‘there are reasonable grounds to do so’.  The discretion to cancel a licence is enlivened under s 25D when the holder of the licence has been found guilty of an offence under the Act or has breached a condition of the licence.  It is uncontested that the applicant had done both.[10]  On a remitter the Tribunal may have affirmed the cancellation of the licences.

   [10]Ibid [14]–[15].

1. The applicant succeeded before this Court and was awarded the costs of the appeal.  The costs order in favour of the respondent made by the Tribunal was set aside.  However, no substitutive order as to costs was made.  The default position in the Tribunal is that each party bears their own costs in the proceeding.[11]  Whether a party is awarded any or all costs is a matter of discretion for the Tribunal.[12]  Even had the applicant succeeded in the Tribunal, he would not have been entitled to costs as of right.  The applicant may not have succeeded at a further hearing.  As such, it was not appropriate that this Court make an order in the applicant’s favour for costs of the hearing before the Tribunal.

   [11]Victorian Civil and Administrative Tribunal Act 1998 s 109(1).

   [12]Ibid s 109(2).

Proposed orders 2, 3 and 4 — reinstatement of licence

1. The licences the subject of the proceedings expired on 30 June 2012.[13]  As was rehearsed in the judgment,[14] after the respondent notified the applicant of its suspension and cancellation decisions, Judge Morrish of the Tribunal ordered that the decisions be stayed pending final determination of the review process.  On 8 June 2012, Buchanan and Nettle JA of this Court stayed the respondent’s suspension and cancellation decisions on the same terms as the order of Judge Morrish pending the determination of this appeal.  On 5 September 2014, this Court delivered its judgment and the stay ceased to have effect.

   [13]Reasons for Judgment, [3], [77].

   [14]Ibid [21], [23].

1. It emerged during oral argument in the hearing of the applicant’s summons that, in addition to the stay of the suspension and cancellation decisions, there was a de facto arrangement between the respondent and the applicant that, pending the outcome of the appeal to this Court, the respondent would treat the applicant as continuing to hold the relevant licences and authorisations.  A copy of a letter from Simon Smith, Director of Biodiversity Policy and Programs at the respondent, to the applicant dated 28 June 2012 was handed up to the Court in the course of oral argument.  The substance of the letter was as follows:

In response to your enquiry of 28 June 2012 regarding renewal of the [Wildlife Demonstrator Licence], I am writing to confirm that the licence is considered to be in effect until the outcome of your current appeal to the Supreme Court of Victoria is known.

1. The fact that the respondent continued to treat the licence as being in effect during the proceedings subject of the appeal to this Court was also noted in an order of Senior Member Proctor of the Tribunal on 2 July 2012, discussed further below.  It is unfortunate that neither party informed the court of this de facto arrangement before we published reasons and made orders on 5 September.

1. The fact of the de facto arrangement provides the background to the applicant’s proposed orders 2, 3 and 4.  As the licences the subject of the proceeding had expired, upon delivery of this Court’s judgment the unfortunate though inevitable consequence was that, notwithstanding that the Tribunal’s orders were set aside, the respondent then ceased to treat the applicant as holding any licences, as indeed he did not.  In proposed order 3, supplemented by order 4, the applicant seeks an order that his licences be re-issued on the standard terms.

1. The information about the de facto arrangement should have been before the Court as it was part of the overall circumstances of the proceeding.  Counsel for the respondent pointed to a footnote in the respondent’s further written submissions in the appeal.  The paragraph for which the footnote was attached read as follows:

In deciding whether or not it is appropriate to grant leave to appeal under s 148 of the VCAT Act, it should be noted that the licence and authorisation that were the subject of the cancellation decision are no longer in force. Each of the licence and the authorisation expired on 30 June 2012.

The footnote read:

See Affidavit of Simon Smith affirmed 23 August 2011, paras 3‑11;  Commercial Wildlife (Wildlife Demonstrator) Licence No 1272061;  Approval dated 27 June 2011 to use wildlife held under Commercial Wildlife (Wildlife Demonstrator) Licence in a television production (in relation to a proposed use of wildlife between 20 July 2011 and 20 February 2012);  Authorisation under s 28A to conduct venomous snake handling courses issued on 8 July 2008.  The remaining licence — Wildlife Controller Licence Type 2 (No 12387349) — was suspended but not cancelled.  Pursuant to interlocutory stay orders made by this Court on 8 June 2012 and by the Tribunal (Vice President Morrish) on 23 August 2011, the Applicant’s licence and authorisations have been continued in effect pending the determination of the Tribunal proceeding and the present application for leave to appeal.

We do not consider the information contained therein to be sufficient notice of the de facto arrangement (although we do not suggest that the existence of the de facto arrangement was deliberately withheld).

1. Nonetheless, as we endeavoured to explain to the applicant, this Court relevantly had no power to issue new licences to the applicant or to renew those currently held.  The Court’s task was only to review the decision of the Tribunal to affirm the respondent’s suspension and cancellation decisions.

1. During oral argument, the Court was informed that the applicant submitted an application for a commercial Wildlife Demonstrator Licence on 15 September 2014.  A number of letters were handed up to the Court.  In a letter dated 8 October 2014, the respondent requested further information in relation to the application and informed the applicant that he was not authorised to conduct any demonstrations until the application was approved.  On 14 November 2014, the respondent advised the applicant in writing that the grant to him of a Wildlife Demonstrator Licence was refused.

1. The applicant’s course of action after our judgment was delivered was entirely proper.  He promptly applied for a new licence.  As was explained to the applicant in the oral hearing, the appropriate forum for review of the decision to refuse that application is the Tribunal.  We were informed by the applicant that he has instituted proceedings in the Tribunal for review of the decision.  It is not within the power of this Court to make any decision in relation to this separate review process.

1. Finally, we should note that it appears from oral argument that the reference in proposed order 2 to the applicant being placed ‘outside of the law’ relates to the fact that he continues to hold animals for which he no longer has a permit or licence.  We were told in oral argument that, after the Tribunal’s decision, the applicant had been informed that he would require a Private Wildlife (Advanced Category) Licence (‘Private Wildlife Licence’) to continue to possess his animals.  Subsequently, the respondent refused his application for a Private Wildlife Licence.  The applicant applied to the Tribunal for review of the respondent’s decision to refuse to grant the licence.  On 7 June 2012, Judge Lambrick in her capacity as Deputy President of the Tribunal stayed the respondent’s decision insofar as it required the surrender or disposal of wildlife until the proceeding for review of the decision to refuse the Private Wildlife Licence was heard and determined.  On 2 July 2012, Senior Member Proctor of the Tribunal made orders to adjourn that proceeding until the outcome of this appeal.  In the letter of 14 November 2014, the respondent informed the applicant, while refusing his application for a commercial Wildlife Demonstrator Licence, that the applicant may continue to possess his animals until the Private Wildlife Licence matter is resolved, pursuant to the stay issued by Senior Member Proctor.  The proceeding for the review of the refusal to grant a Private Wildlife Licence should now come on for hearing.

Proposed orders 5 and 6 — miscellaneous

1. In relation to proposed order 5, any application in relation to the manner of the publication of the Tribunal’s reasons is properly to be made to the Tribunal.

1. In relation proposed order 6, it is not appropriate that this Court grant any such order.  Any breach of an order of this Court may be pursued in the ordinary manner.

1. For the reasons given, the applications made by summons on 12 September 2014 must be dismissed.

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