LU -v- CEO, DEPARTMENT FOR CHILD PROTECTION [2013] WASC 385

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASC 385
Case No:	GDA:6/2013	Heard:	17 OCTOBER 2013
Coram:	BEECH J	Delivered:	24/10/13
No of pages:	15	Judgment Part:	1 of 1
Result:	Application for leave to appeal dismissed
Category:	B
PDF Version

Parties:	BOHUA LU CEO, DEPARTMENT FOR CHILD PROTECTION
Catchwords:	Appeal Administrative tribunal Appeal only on question of law Working with Children (Criminal Record Checking) Act 2004 (WA) Negative notice issued Where appellant convicted of an offence under provision later repealed Whether exceptional circumstances existed Whether error of law shown
Legislation:	State Administrative Tribunal Act 2004 (WA), s 105 Working with Children (Criminal Record Checking) Act 2004 (WA), s 12
Case References:	BTR plc v Westinghouse Brake and Signal Co (Aust) Ltd (1992) 34 FCR 246 D v CEO, Department for Child Protection [2009] WASAT 166 Hunter v Chief Constable of the West Midlands Police [1982] AC 529 Paridis v Settlement Agents Supervisory Board (2007) 33 WAR 361 Vella v Bowden (No 2) [2012] WASCA 271

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : LU -v- CEO, DEPARTMENT FOR CHILD PROTECTION [2013] WASC 385 CORAM : BEECH J HEARD : 17 OCTOBER 2013 DELIVERED : 24 OCTOBER 2013 FILE NO/S : GDA 6 of 2013 BETWEEN : BOHUA LU

Appellant

AND

CEO, DEPARTMENT FOR CHILD PROTECTION

Respondent

ON APPEAL FROM:

Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA

Coram : MR M ALLEN (SENIOR MEMBER)

File No : VR 177 of 2011

Catchwords:

Appeal - Administrative tribunal - Appeal only on question of law - Working with Children (Criminal Record Checking) Act 2004 (WA) - Negative notice issued - Where appellant convicted of an offence under provision later repealed - Whether exceptional circumstances existed - Whether error of law shown

Legislation:

State Administrative Tribunal Act 2004 (WA), s 105

Working with Children (Criminal Record Checking) Act 2004 (WA), s 12

Result:

Application for leave to appeal dismissed

Category: B

Representation:

Counsel:

Appellant : In person

Respondent : Mr D E Leigh

Solicitors:

Appellant : In person

Respondent : State Solicitor for Western Australia

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

BTR plc v Westinghouse Brake and Signal Co (Aust) Ltd (1992) 34 FCR 246
D v CEO, Department for Child Protection [2009] WASAT 166
Hunter v Chief Constable of the West Midlands Police [1982] AC 529
Paridis v Settlement Agents Supervisory Board (2007) 33 WAR 361
Vella v Bowden (No 2) [2012] WASCA 271

BEECH J

Introduction

1 Mr Lu seeks leave to appeal against a decision of the State Administrative Tribunal (the Tribunal) under the Working with Children (Criminal Record Checking) Act 2004 (WA) (WWC Act).

2 In March 2011, Mr Lu applied to the respondent for an assessment notice under the WWC Act to enable him to carry out child related work as a high school teacher. Consequently, the respondent conducted a criminal record check and became aware that the appellant had been convicted…

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.

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Details

Case: [2013] WASC 385
Decision Date: 24 OCTOBER 2013

CaseChat Overview and Summary

The matter before the court involved an appeal by Lu against a decision made by the CEO of the Department for Child Protection under the Working with Children (Criminal Record Checking) Act 2004 (WA). Lu sought to challenge a negative notice issued under the Act, which prevented them from engaging in certain employment involving children. The negative notice arose after Lu was convicted of an offence under a provision of the Act that was later repealed. The appeal was heard and dismissed by the court.

The primary legal issue before the court was whether the appellant demonstrated exceptional circumstances to warrant an appeal on a question of law, given that the appeal was limited to questions of law. The court was also required to determine if the appellant had shown an error of law in the decision-making process of the CEO regarding the negative notice. Specifically, the court examined whether the appellant's conviction under a provision of the Act that had since been repealed constituted an error of law or if there were exceptional circumstances that warranted the negative notice being reconsidered.

The court found that the appeal was confined to questions of law and did not involve any factual disputes. It held that the appellant had not demonstrated any exceptional circumstances that would permit an appeal beyond the scope of legal questions. Furthermore, the court ruled that there was no error of law in the decision to issue the negative notice. The court found that the fact that the provision under which the appellant was convicted was later repealed did not constitute an error of law in the context of the decision to issue the negative notice. Consequently, the application for leave to appeal was dismissed.

No further orders were made by the court, and the decision of the CEO to issue the negative notice remained in place.

Orders

Orders of the court

Application for leave to appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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