Chief Executive Officer, Department for Child Protection v T

[2013] WASCA 105

CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION -v- T [2013] WASCA 105

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASCA 105
Court:	THE COURT OF APPEAL (WA)	Published:	18/04/2013
Case No:	CACV:155/2012	Heard:	5 APRIL 2013
Coram:	PULLIN JA	Delivered:	5/04/13
No of pages:	9	Judgment Part:	1 of 1
Result:	Application granted
Category:	B
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Parties:	CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION T
Catchwords:	Practice and procedure Application for a stay of an order of the State Administrative Tribunal
Legislation:	Nil
Case References:	Chief Executive Officer, Department for Child Protection v Grindrod [No 2] [2008] WASCA 28; (2008) 36 WAR 39 Chief Executive Officer, Department for Child Protection v S [2007] WASCA 230; (2007) 98 ALD 329 Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 Hardingham v Chief Executive Officer, Department for Child Protection [2011] WASC 86 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 T and Chief Executive Officer, Department for Child Protection [2012] WASAT 235

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION -v- T [2013] WASCA 105 CORAM : PULLIN JA HEARD : 5 APRIL 2013 DELIVERED : 5 APRIL 2013 PUBLISHED : 18 APRIL 2013 FILE NO/S : CACV 155 of 2012 BETWEEN : CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION

Appellant

AND

T
Respondent

ON APPEAL FROM:

Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA

Coram : JUDGE T SHARP (DEPUTY PRESIDENT)

Citation : T and CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION [2012] WASAT 235

File No : VR 162 of 2011

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Catchwords:

Practice and procedure - Application for a stay of an order of the State Administrative Tribunal

Legislation:

Nil

Result:

Application granted

Category: B

Representation:

Counsel:

Appellant : Ms L A Eddy
Respondent : Mr J A Davies

Solicitors:

Appellant : State Solicitor for Western Australia
Respondent : Slater & Gordon

Case(s) referred to in judgment(s):

Chief Executive Officer, Department for Child Protection v Grindrod [No 2] [2008] WASCA 28; (2008) 36 WAR 39
Chief Executive Officer, Department for Child Protection v S [2007] WASCA 230; (2007) 98 ALD 329
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Hardingham v Chief Executive Officer, Department for Child Protection [2011] WASC 86
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
T and Chief Executive Officer, Department for Child Protection [2012] WASAT 235
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1 PULLIN JA: On 5 April 2013, I made an order staying an order of Sharp DCJ, the Deputy President of the State Administrative Tribunal (SAT) dated 28 November 2012 until the determination of the appeal. These are the reasons for my order.

The events leading to the SAT decision

2 For many years the respondent was a primary school teacher. In 2008, he applied for an assessment notice under the Working with Children (Criminal Record Checking) Act 2004 (WA) (the Act). An assessment notice was issued by the appellant on 30 April 2008.

3 On 23 October 2009, the Department of Education and Training provided written notice, in accordance with s 16(1) of the Act, to the appellant that the respondent had been charged with offences of indecent dealing with a child under 13 years of age contrary to s 320(4) of the Criminal Code 1913 (WA). The offences were alleged to have occurred in 1995 against two complainants, being 11-year-old students at the school where the respondent taught. It was alleged that the respondent indecently dealt with the complainants in the classroom. The offences were class 2 offences under the Act (see s 7(2) and sch 2). On 26 October 2009, the appellant notified the respondent that he must again apply for an assessment notice (see s 16(3) of the Act). The application was made on 27 October 2009. On 5 May 2010, the respondent was issued with a negative notice. The respondent has not worked as a school teacher since then.

4 The respondent applied to SAT for a review of the negative notice decision, but later withdrew the application after he was acquitted of the indecent dealing charges by jury verdict on 25 August 2010.

5 The respondent then applied to the appellant for cancellation of the negative notice on the basis of his acquittal under s 19(1) of the Act.

6 On 3 August 2011, the respondent was notified that the appellant refused to cancel the negative notice. The decision was made by taking into account not only the two 'non-conviction charges', but also information which had prompted an inquiry in 1999 under s 7C of the Education Act 1928 (WA) (Education Act) relating to the allegations of inappropriate touching of three boys in his class.

7 On 31 August 2011, the respondent sought a review of the decision by SAT. The hearing in SAT did not take place until 6 and 7 August

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2012. SAT reserved its decision, and delivered its reasons and made orders on 28 November 2012.

The orders made by SAT on 28 November 2012

8 Orders were made by SAT setting aside the decision of the appellant, cancelling the negative notice and directing the appellant to issue an assessment notice.

The appellant commences this appeal

9 On 7 December 2012, the appellant requested the State Solicitor's Office (SSO) to provide advice as to whether there should be an appeal. By 20 December 2012, advice had been given and instructions were given by the appellant to commence an appeal. An application for leave to appeal had to be filed within 28 days of the SAT decision: see s 105(5) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). An appeal notice seeking leave to appeal was filed on 21 December 2012.

The events leading to the application for a stay

10 On 14 January 2013, the SSO wrote to the respondent's solicitors asking whether the respondent would consent to the making of an order staying the effect of the SAT decision and enclosing a consent notice. On 18 January 2013, the respondent's solicitors said that they had not seen the appellant's grounds of appeal, and could not agree to consent orders until they could see whether the grounds were at least arguable.

11 On 25 January 2013, the SSO wrote to the respondent's solicitors advising of the proposed grounds of appeal. The appellant said that it contended that the reasoning of EM Heenan J in Hardingham v Chief Executive Officer, Department for Child Protection [2011] WASC 86 in relation to how a decision-maker should approach information about non-conviction charges, was inconsistent with reasoning in Chief Executive Officer, Department for Child Protection v Grindrod [No 2] [2008] WASCA 28; (2008) 36 WAR 39, and that 'in applying that reasoning in the present case, the [SAT] erred'. A letter from the SSO accepted that the case was one where the grant of leave to appeal should be made conditional on payment of the respondent's costs by the appellant. The letter ended with a further request for advice about whether there was to be consent to the grant of a stay of SAT's orders.

12 On 11 February 2013, the solicitor handling the matter at the SSO became aware that the solicitor handling the file at the respondent's solicitors' office claimed that he had not received the letter of 25 January

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2013, and so a copy of the letter was emailed to the respondent's solicitors from the SSO. On that same day (11 February 2013), a solicitor in the respondent's solicitors' office said that there would be a response as soon as instructions had been received.

13 On 25 February 2013, the SSO sent another email to the respondent's solicitors furthering the attempts to confer and avoid the need for an application. It asked whether the respondent would consent to the making of a stay order.

14 On 27 February 2013, the appellant received information that the respondent's solicitors had met with counsel on 26 February 2013, and that instructions from the respondent in relation to the stay issue could be expected by the end of the week.

15 On 6 March 2013, the respondent's solicitors advised that a letter would be sent that afternoon stating that the respondent would not consent to an order for an interim stay. A letter was sent by the respondent's solicitors on 6 March 2013 to the appellant, care of the SSO, not responding to the questions about whether there would be a consent to the stay, but demanding that the 'relevant permit' be issued 'today'.

16 On that same day, a letter was sent from the SSO to the respondent's solicitors reminding them of the attempts which had been made by the SSO to ascertain whether a stay would be consented to or not.

17 The next day, 7 March 2013, the appellant filed the application for the stay.

The reasons of SAT

18 SAT, in its reasons for decision in T and Chief Executive Officer, Department for Child Protection [2012] WASAT 235, set out the details of the 1999 allegations concerning the three boys who were said to have been inappropriately touched by the respondent [16]. Police interviewed two of the boys, but elected to take no further action. There was then an inquiry pursuant to s 7C of the now repealed Education Act, and after that inquiry, the respondent was found 'not guilty of misconduct'. The inquirer's report stated that there was 'no hard evidence' to support the allegations. The children themselves were not interviewed because the mother of two of the boys refused to allow it, and the inquirer believed that the other boy's parents might not even have been aware of the complaint [22]. The mother of the first two boys was critical of the way

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the police had dealt with the matter, having interrupted a school sports day to interview the two boys [23].

19 SAT referred to the second set of allegations made by two young men about incidents of indecent dealing which had occurred in 1995 when they were boys. They reported the incidents in 2009. These were the allegations that gave rise to the class 2 charges [31]. After a trial in which the two complainants gave evidence, the jury returned verdicts of not guilty [52].

20 These facts having been set out, SAT then referred to Grindrod and EM Heenan J's reasons in Hardingham. SAT began (at [57]) by referring to Buss JA's reasons in Grindrod and his Honour's exegesis of s 12 of the Act, during which his Honour said:

In my opinion, it is implicit in s 12[(5)] and (8), in the context of s 3 and the WWC Act as a whole, that the CEO is not entitled to issue a negative notice under s 12[(5)] unless the CEO finds, on the basis of the information and other material properly before him or her, and after having regard to the criteria in pars (a) - (f) of s 12(8) (including, in particular, the paramount consideration of the best interests of children), that there is an 'unacceptable risk' that the applicant might cause sexual or physical harm to children, in the course of carrying out child-related employment.

The notion of 'unacceptable risk' reflects the evident policy of the WWC Act in balancing the risk of harm to children on the one hand with the civil rights of an applicant on the other. It embodies the precautionary approach that I have mentioned [81] - [82].

21 SAT also quoted Buss JA's reasons at [84] - [85], where he said:

It is not the CEO's function (under s 12[(5)]) or the Tribunal's function (on a review application) to adjudicate upon whether the applicant is, in fact and at law, guilty or not guilty of the non-conviction charge in question. The relevant function involves an analysis and evaluation of risk. It is not concerned with the proof of offences which the applicant may have committed previously, but with the prevention of potential future harm.

The critical question for the CEO under s 12(4) is whether, on all the information and other material properly before him or her, there is an 'unacceptable risk' that the applicant might, in the future, cause sexual or physical harm to children, in the course of carrying out child­related employment. The risk in question has to be unacceptable, not likely. Even if the information and other material properly before the CEO does not establish according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw, that the applicant has previously caused sexual or physical harm to, or engaged in misconduct in relation to, a child or children, any material before the CEO which bears upon that issue does not, as a result, become

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irrelevant to the performance of his or her function. The critical question remains to be answered, namely, whether, on all the information and other material properly before the CEO, there is an 'unacceptable risk' of the kind I have described. Compare M v M (76 ­ 78); Re H and ors (minors)[1996] AC 563, 572 ­ 573 (Lord Browne­Wilkinson, dissenting) and 576 - 577 (Lord Lloyd of Berwick, dissenting); Murphy[243] - [305] (Carmody J).

22 Buss JA referred to the factors which bear upon risk and stated:

The analysis and evaluation of risk must be based on all the information and other material properly before the CEO. That material may include, in a particular case, the depositions and evidence or witnesses at a trial. It will be necessary, no doubt, for the CEO, in deciding whether, for the purposes of s 12[(5)] there is an 'unacceptable risk', to rely partly on facts and partly on reasonable suspicions. The weight to be accorded to particular facts or reasonable suspicions will depend on all the circumstances, including the apparent probative value of those facts or suspicions [87].

23 SAT then referred to the reasons of EM Heenan J in Hardingham at [152], where his Honour said that the content of the term 'reasonable suspicion' carried with it:

the need for the suspicion to be reasonably based upon plausible information or facts, but not necessarily material amounting to prima facie proof or admissible evidence …

24 When SAT came to making findings at the end of its reasons, reference was again made to EM Heenan J's reasons in Hardingham, where his Honour said at [59]:

[I]f … there is no cogent reason to conclude that the person charged actually committed the offence, then to reason from the mere laying of the charge to a conclusion that the offence had been committed is entirely unjustified and prejudicial.

25 SAT also quoted EM Heenan J saying at [135]:

[I]f the case is not one of those in which its strength is not destroyed or significantly diminished by the fact that an acquittal or dismissal resulted or that the prosecution was not pursued, it must mean that the resulting absence of a conviction is due to the weakness or absence of a case to establish that the person charged had committed the alleged offence.

26 SAT then noted that the prosecution did not abandon the charges and presumably presented its case in the best possible light, said that the allegations in 1999 led the police to interview only two of the boys and then decide not to charge the applicant, and that this was 'probably
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because the police considered the applicant had no case to answer or that there were weaknesses in the case that led them to conclude that it was pointless to proceed further' [99].

27 At [101], SAT concluded by saying that the expert witnesses' view was that, if the allegations against the respondent were true, then children would be at risk if the negative notice was cancelled. SAT then said:

That is undoubtedly so, but none of the allegations were made out and I have no justification for concluding that, based on fact, reasonable suspicions or both, the allegations are true [101].

The appellant's grounds of appeal

28 The appellant seeks leave to appeal on four grounds, the first of which contends that SAT erred by applying the reasons of EM Heenan J in Hardingham at [59] and [135] to exclude consideration of the allegations made in 2009 and in 1999 from his assessment of whether there was an unacceptable risk that the respondent might, in the future, cause physical or sexual harm to children.

The application for a stay

29 This court may stay the operation of the decision of SAT pending the determination of an appeal: see s 106(1) of the SAT Act. Rule 43(2)(h) of the Supreme Court (Court of Appeal) Rules 2005 (WA) confers jurisdiction on a single judge to make an interim order. Rule 3(1) defines 'interim order' to include an order staying the execution of the primary court's decision.

30 The jurisdiction conferred by the SAT Act to grant a stay is unconfined by any express criteria. The factors which are often relevant to the exercise of the discretion are set out in Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308. It is not necessary to repeat those factors. One of the considerations when the case concerns money or property is whether the refusal to grant a stay will render the appeal nugatory. However, in a case where there is no property to be transferred nor money to be paid pursuant to the judgment, that consideration may be of little or no relevance. In this case, a refusal of the stay would not render the appeal nugatory. The important considerations in this case are the public interest, the balance of convenience, whether the appeal has reasonable prospects of success, and the principle that the respondent is entitled to the benefit of (or the 'fruits' of) the judgment under appeal: Chief Executive Officer, Department for Child Protection v S [2007] WASCA 230; (2007) 98 ALD 329 [6].

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31 As to whether the appeal has reasonable prospects of success, the appellant contends, by its first ground of appeal, that SAT, in effect, excluded material which might have led to the dismissal of the application for review. Whether a full analysis of what EM Heenan J said in Hardingham conflicts with what was said in Grindrod is a matter which will have to be considered on appeal. All that is necessary to say is that it would not be irrational, fanciful or absurd to envisage ground 1 as succeeding and in that sense it has a reasonable prospect of success: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56]. That is a factor favouring the grant of the stay.

32 A consideration to be taken into account is the interests of children generally. If the stay is not granted and an assessment notice is issued, then the appellant may work with children. If the appeal succeeds and the SAT order is set aside, the circumstances will be that the appellant may have been working with children on the basis of the erroneous order. That factor favours the grant of a stay.

33 As to the balance of convenience, the respondent was issued with a negative notice on 5 May 2010 and has not worked as a school teacher since then. No affidavit has been filed by the respondent suggesting that the respondent has not found some other means of obtaining income or supporting himself since then. This factor is therefore neutral.

34 The appellant has an order in his favour, and that is a factor against the grant of a stay.

35 Taking into account all of these factors, the balance favoured the grant of a stay. As a result, an order granting a stay was made.