EP v Commission for Children and Young People

[2003] NSWADT 227

CITATION:	EP v Commission for Children and Young People [2003] NSWADT 227
DIVISION:	Community Services Division
PARTIES:	APPLICANT EP RESPONDENT Commission for Children and Young People
FILE NUMBER:	034001
HEARING DATES:	31/07/2003
SUBMISSIONS CLOSED:	07/31/2003
DATE OF DECISION:	09/30/2003
BEFORE:	Britton A - Judicial Member
APPLICATION:	Declaration that applicant not a prohibited person
MATTER FOR DECISION:	Dismissal
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Child Protection (Prohibited Employment) Act 1998
CASES CITED:	Crewdson v Niland & Ors (EOD) [2002] NSWADTAP 5; General Steel Industries v Commissioner for Railways (NSW)(1964) 112 CLR 125; Fairey v Fairey (No 2) [2000] NSWCA 173
REPRESENTATION:	APPLICANT EP RESPONDENT Commission for Children and Young People
ORDERS:	DATE OF ORDERS: 31 July 2003; 1 Application is dismissed under section 73(5)(h) of Administrative Decisions Tribunal Act 1997; 2 The Applicant is entitled to make further application under section 9 or section 8(a) of that Act at any time after the date of these orders

(1A) This section applies only to the following:

(a) proceedings in the Community Services Division of the Tribunal,

(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,

(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.

(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:

(a) who appears as a witness before the Tribunal in any proceedings, or

(b) to whom any proceedings before the Tribunal relate, or

(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,

whether before or after the proceedings are disposed of.

Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.

(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.

(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

1 These reasons are provided in elaboration of the brief oral reasons delivered on 31 July 2003. The orders made on that day were as follows:

Application is dismissed under section 73(5)(h) of the Administrative Decisions Tribunal Act 1997.

The Applicant is entitled to make further application under section 9 or section 8(a) of that Act at any time after the date of these orders.

2 The Applicant, EP, is a “prohibited person” as defined by s 5 of the Child Protection (Prohibited Employment) Act 1998 (“Child Protection Act”). As a prohibited person it is an offence for the Applicant to apply for, undertake or remain in child-related employment. On 7 January 2003 the Applicant lodged an application seeking a declaration under s 9(1) of the Child Protection Act. If granted, the Applicant would no longer be prohibited from working in child-related employment: s 5(2) of the Child Protection Act.

3 The Applicant and the Respondent appeared at the first directions hearing in this matter on 14 February 2003. The Applicant failed to attend subsequent directions hearings set down for 27 March, 24 April, 12 June, 3 July and 31 July. To date no explanation has been offered which might explain this non-attendance.

4 At the directions hearing of 3 July 2003 I announced my intention to list the matter for dismissal. At my direction, the Registrar advised the Applicant in writing of that course. For convenience I set out the text of that letter below:

At the directions hearing set down for 3 July 2003 at 10am in respect of the above matter, Judicial Member Ms Anne Britton directed the matter be set down for hearing on Thursday 31 July 2003 at 2pm to determine whether the application lodged on 7 January should be dismissed. The reason for this direction is your failure to attend the 12 June and 3 July case conference or provide any explanation for this non-attendance.

Section 73(5)(h) of the Administrative Decisions Tribunal Act provides that the Tribunal may dismiss at any stage any proceedings before it if it considers the proceedings to be frivolous or vexatious or otherwise misconceived or lacking in substance. You may attend the 31 July 2003 case conference by phone or in person. If you intend to attend by phone, we would be grateful if you could fax us the phone number you wish to use no later than close of business 29 July 2003. If you have any further enquiries, contact the Registrar.

5 The Tribunal’s file reveals that notices of all hearings have been sent to the address for service provided by the Applicant. File notes made by Registry staff indicate that phone messages have been left for the Applicant at the phone number/s advised. The file also reveals that on a number of occasions the Applicant contacted the Tribunal and made arrangements to attend directions hearings by phone.

6 In the light of this history what steps if any ought the Tribunal take? There are essentially two courses available to the Tribunal, determine or dismiss the application.

7 I turn first to the Tribunal’s powers to dismiss an application made under s 9(1) of the Child Protection Act 1998.

8 Section 73(5)(h) of the Administrative Decisions Tribunal Act 1997 (“Tribunal Act”) gives the Tribunal express power to dismiss, at any stage, any proceedings before it if it considers the proceedings to be frivolous or vexatious or otherwise misconceived or lacking in substance. It is to be observed that this provision does not give the Tribunal express power of disposal on the grounds of want of prosecution.

9 The Child Protection Act gives a prohibited person an unfettered right to make application under s 9(1). It is difficult to see how an application made under s9(1) could be characterised as lacking in substance or frivolous. In my view these proceedings could not be characterised in this way.

10 Can it be said however that that the proceedings are vexatious? In Crewdson v Niland & Ors (EOD) [2002] NSWADTAP 5 the Appeal Panel took the view that proceedings could be said to be “vexatious” where they have no foundation and also where: -

1. They are instituted with the intention of annoying or embarrassing the person against whom they are brought;

2. They are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise;

3. Irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless." Attorney-General v Wentworth (1988) 14 NSWLR 481, per Roden J at 491.

11 In my view, where there has been a repeated failure by an Applicant to comply with directions of the Tribunal coupled with a failure to explain this non-compliance, it is arguable that this conduct represents the irresponsible pursuit of litigation. In my view the term “vexatious” is broad enough to encompass such conduct.

12 Alternatively, in my view it would be open to the Tribunal to dismiss this application under s 73(1) of the Tribunal Act. That provision gives the Tribunal broad power to determine its procedure. Section 73(3) instructs the Tribunal to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal form: s 73(3). The Tribunal is at the same time bound by the rules of natural justice: s 73(4).

13 It is matter of trite law that the power to dismiss a matter summarily must be exercised with exceptional caution: General Steel Industries v Commissioner for Railways (NSW)(1964) 112 CLR 125 at p129. That power has been the subject of comment by the President of the NSW Court of Appeal in Fairey v Fairey (No 2) [2000] NSWCA 173: -

"The power to dismiss proceedings summarily serves the dual purposes of ensuring fairness to litigants and preserving the integrity of the judicial system. The former purpose aims essentially to protect the litigant, in this case the Respondent, from the consequences of delay, be those consequences financial, impacts on litigation, psychological or otherwise. The latter purpose, namely the integrity of the judicial system, promotes the expedient resolution of cases and has some regard to the interests of litigants generally in the Court. I hasten to say that regard cannot over-reach the rights of the individual litigants to justice in their own case."
14 An alternative course available to the Tribunal would be to determine the application on the material so far. Section 9(4) of the Child Protection Act provides that the Tribunal is not to make an order under s 9 unless it considers that the Applicant does not pose a risk to the safety of children [emphasis added]. Section 9(5) requires the Tribunal in making that determination, to take into account a non-exhaustive list of factors.

15 I have before me limited material provided by the Applicant. In his application he asserts he is not a risk to children and at all times has behaved appropriately towards children. He gives an innocent account of his conduct which led to his conviction for the “serious sex offence” namely “sex intercourse with person 10 to 16 years of age”. These claims are untested.

16 The onus lies with the Applicant to show, on the Briginshaw standard, that he is not a risk to children. From the material before me thus far I could not be satisfied that that evidentiary burden has been discharged. Accordingly, if the application were to be determined at this stage, I would be obliged to make a finding adverse to the Applicant.

17 In my view no useful purpose would be served in determining the merits of the application at this stage.

Costs

18 Ms Ford, for the Respondent, advises that the Respondent has incurred costs to date of $16,000. Section 9(11)(a) provides that the Tribunal may not award costs in proceedings brought under this s 9. Accordingly it is not open to the Respondent to seek to recover these costs. The public interest demands that in a “no-costs” jurisdiction that parties not be put to unnecessary costs. The absence of any costs sanction does not mean that parties should be permitted to disregard the costs implication of their actions. While not determinative, the prejudice the Respondent will suffer if these proceedings are not brought to conclusion is a relevant matter that must be taken into account.

Conclusions

19 In my view, it is necessary that these proceedings be brought to an end. I find that the circumstances of this matter warrant an exercise of the Tribunal’s power to dismiss proceedings under 73(5)(h) of the Tribunal Act on the grounds that they are vexatious in the sense that no foundation has been established for them. In reaching that conclusion, I have taken into account the following: the Applicant’s repeated and unexplained failure to attend directions hearings; the fact that he has been put on notice of the Tribunal’s intention to dismiss the application; the prejudice suffered to the Applicant if the matter were to be determined under s 9(4) of the Child Protection Act; the significant costs incurred by the Respondent to date.

20 In any event, whether the proceedings are in fact vexatious or not, a point can be, and in this case has been, reached when the prejudice to a party, which cannot be cured by an order for costs, caused by the actions of the opponent, reaches an unacceptable, even intolerable, level. At that stage, it becomes fundamentally unfair to the party to allow the opponent to maintain its action. This is a case in point.

Form of Orders

21 In the hearing on 31 July 2003 I raised with the Respondent’s representative the issue of the operation of s 9(8) of the Child Protection Act in respect of an order made under s 73(5)(h) and whether the operation of this provision should be addressed in any orders made.

22 Section 9(8) of the Child Protection Act provides:

If a relevant tribunal refuses to make an order under this section, the prohibited person is not entitled to make an application for an order under this section or section 8A in respect of that offence until after the period of 5 years from the date of the tribunal's refusal, unless the tribunal otherwise orders at the time of refusal.
23 Ms Ford submitted that s 9(8) would not operate to prevent the Applicant making a fresh application. She contends that the five-year prohibition is only triggered where the relevant tribunal makes a substantive determination under s 9(4).

24 That view may be correct. However the opening words of s 9(8) are broad: “If a relevant Tribunal refuses to make an order under this section”[emphasis added]. That is, the effect of the order made in this matter. It may be that the s 9(1) application was refused because of procedural deficiencies and not issues of substance but nevertheless the application has been refused. In the interests of clarity I therefore order that s 9(8) not apply in this case.