Kahan v Strauss - [2017] VSC 8

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2015 05452

BRETT KAHAN as a delegate of the Chief Commissioner of Victoria Police exercising powers pursuant to the Private Security Act 2004 (Vic)	Plaintiff
v
STEPHEN STRAUSS	Defendant

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	15 June and 7 November 2016
DATE OF JUDGMENT:	6 February 2017
CASE MAY BE CITED AS:	Kahan v Strauss
MEDIUM NEUTRAL CITATION:	[2017] VSC 8

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JUDICIAL REVIEW AND APPEALS – Application for leave to appeal from Victorian Civil and Administrative Tribunal (‘VCAT’) under s 150 of the Private Security Act 2004 (Vic) – Decision of delegate of the Chief Commissioner of Police to cancel a Private Security Individual Operator licence under s 56 of the Private Security Act 2004 (Vic) – VCAT stands in the shoes of original decision-maker – Nature of applications for leave to appeal under s 148 of VCAT Act.

STATUTORY CONSTRUCTION – Private Security Act 2004 (Vic) s 25 – Public interest – The extent to which public confidence is relevant to the question of whether it is in the public interest that the defendant hold a licence – Breadth of test – Distinction between what is ‘of public interest’ and what is ‘in the public interest’ – Public confidence an outcome of a proper system of regulation, rather than a matter to be taken into account in determining what is in the public interest – The Tribunal has broad discretion to consider circumstances of individual cases within the purpose of the relevant Act – Secretary, Department of Justice v LMB; Secretary, Department of Justice v PMY [2012] VSCA 143; Director of Public Transport v XFJ [2011] VSCA 302 referred to and applied.

STATUTORY CONSTRUCTION – Whether Tribunal erred in finding that defendant a fit and proper person to hold a security licence – Director of Public Transport v XFJ [2011] VSCA 302 followed – Whether defendant convicted of an offence which renders him unsuitable to hold a licence.

APPEALS FROM VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL – Whether decision of Tribunal unreasonable – Whether to interfere with exercise of discretion – Reluctance of Court to conclude that a decision of Tribunal was so unreasonable as to be untenable – Bell Corp Victoria Pty Ltd v Stephenson (2003) 20 VAR 280, Pong Property Development Pty Ltd v Strangio (2005) VSC 217 referred to and applied.

PRACTICE AND PROCEDURE – Defendant’s decision not to participate in the proceeding – Practical utility of proceeding – Improper to seek determination as a precedent for future applications – Determination of issues in this proceeding affects the defendant’s personal record.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T B Goodwin	Victorian Government Solicitor’s Office
For the Defendant	No appearance
Amicus Curiae (on 7 November 2016)	Mr L Wirth	Victorian Bar Duty Barrister Scheme

TABLE OF CONTENTS

Introduction and preliminary matters............................................................................................ 1

The application before VCAT......................................................................................................... 3

The Senior Member’s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kahan v Strauss

Details

AGLC: Kahan v Strauss [2017] VSC 8
Case: [2017] VSC 8
Decision Date: 6 February 2017

CaseChat Overview and Summary

The applicant in Kahan v Strauss sought leave to appeal a decision by the Victorian Civil and Administrative Tribunal (VCAT) that had cancelled the applicant’s Private Security Individual Operator licence under the Private Security Act 2004 (Vic). The decision was made by a delegate of the Chief Commissioner of Police. The applicant contested the delegate's decision, arguing that VCAT had failed to properly consider the public interest and whether the applicant was a fit and proper person to hold the licence. The court was required to determine whether VCAT had correctly interpreted the statutory provisions, whether the decision was unreasonable, and if the decision should stand as a precedent for future cases.

The court examined the statutory interpretation of the Act, focusing on the distinction between what is ‘of public interest’ and what is ‘in the public interest’. The court held that public confidence is an outcome of a proper regulatory system, rather than a separate factor to be weighed in the public interest assessment. The court found that VCAT had broad discretion in considering the circumstances of individual cases and had not erred in its assessment of the applicant’s fitness to hold the licence. The court also noted the applicant's failure to participate in the proceeding and considered the practical utility of the appeal. Ultimately, the court found that the decision of VCAT was not unreasonable and declined to grant leave to appeal.

The court ruled that the VCAT decision was reasonable and did not warrant interference. The court emphasized the broad discretion of VCAT and the difficulty in concluding that a tribunal's decision was so unreasonable as to be untenable. The court also highlighted the importance of the individual circumstances of the applicant and the principle that a determination in one case should not set a precedent for future cases. The court's decision underscores the importance of the tribunal's discretion and the high threshold for overturning such decisions. The final orders were to dismiss the application for leave to appeal.

Orders