QUEEN and CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION
[2012] WASAT 101
•14 MAY 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: VOCATIONAL REGULATION
ACT: WORKING WITH CHILDREN (CRIMINAL RECORD CHECKING) ACT 2004 (WA)
CITATION: QUEEN and CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION [2012] WASAT 101
MEMBER: JUSTICE J A CHANEY (PRESIDENT)
HEARD: 30 APRIL 2012
DELIVERED : 14 MAY 2012
FILE NO/S: VR 50 of 2012
BETWEEN: WILLIAM HACKETT QUEEN
Applicant
AND
CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION
Respondent
Catchwords:
Practice and procedure - Extension of time to commence proceedings - Two years delay
Legislation:
Community Protection (Offender Reporting) Act 2004 (WA)
State Administrative Tribunal Act 2004 (WA), s 20(1)
State Administrative Tribunal Rules 2004 (WA), r 9, r 10
Working with Children (Criminal Record Checking) Act 2004 (WA), s 19(2), s 19(3)
Result:
Extension of time refused
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Mr B Regts
Solicitors:
Applicant: N/A
Respondent: Mr B Regts
Case(s) referred to in decision(s):
Howle v Best [2012] WASC 62
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicant applied for an extension of time of over two years to commence an application for review of a decision under the Working with Children (Criminal Checking) 2004 Act (WA) to issue a negative notice. The negative notice had been issued on 10 December 2009. Applications for review of such decisions are required by the State Administrative Tribunal Rules 2004 (WA) to be made within 28 days of notification of the decision, and of the right of review, being given to the person affected. The primary explanation for the delay was that the applicant was engaged in other proceedings which were highly relevant to the likely outcome of any application for review.
The Tribunal reviewed the events which had transpired since the negative notice was issued, and noted that the other relevant proceedings had been concluded some seven months before the application was made to the Tribunal.
The Tribunal also noted that the grant of an extension would, in effect, circumvent the prohibition on seeking cancellation of a negative notice within three years of its issue. It concluded that an extension should not be granted in this case.
The application
On 16 March 2012, an application under the Working with Children (Criminal Record Checking) Act 2004 (WA) (WWC Act) was lodged with the Tribunal. The application was in the name of Eric William Scott, also known as William Hackett Queen. The applicant subsequently advised that the name, William Hackett Queen is his birth name, and the name to which he should properly be referred. Accordingly, he will be referred to in these reasons by that name.
Mr Queen was the subject of a negative notice issued pursuant to the WWC Act on 10 December 2009. The negative notice had been issued on the basis that Mr Queen had two class 2 convictions for child sex offences, and certain other offences. The class 2 offences had occurred a very long time ago.
For reasons which will be explained, Mr Queen had not sought a review of the decision, which he had only learned about in January 2010 through his then solicitor. By virtue of r 9 of the State Administrative Tribunal Rules 2004 (WA) (SAT Rules), an application to the Tribunal in its review jurisdiction must be made within 28 days of the date on which the decision-maker gives notice of the right of review. Notice of the right of review was included in the letter of 9 December 2009 advising of the issue of the negative notice. Mr Queen was, therefore, out of time by over two years in lodging an application with the Tribunal. The Tribunal has, pursuant to r 10 of the SAT Rules, the power to extend time for commencement of a proceeding, a power which can be exercised notwithstanding that the time limit has already expired.
Mr Queen's application identified the decision sought from the Tribunal as follows:
A waiver of a 3 year waiting period … extension of time outside of the 28 day timeframe …
The reference to 'a waiver of a 3 year waiting period' is a reference to the provisions of s 19(2) of the WWC Act which provides that an application to cancel a negative notice cannot be made sooner than three years after the negative notice was issued. It is clear that that statutory prohibition applies unless certain circumstances, set out in s 19(3) of the WWC Act, exist. The circumstances do not exist in this case. It follows that neither the CEO of the Department for Child Protection, nor the Tribunal, has the power or jurisdiction to waive the three year requirement under s 19(2). The only possibility, therefore, of Mr Queen having the merits of his position considered before December 2012 is if he obtains an extension of time for a review of the decision to issue a negative notice.
The principles in relation to extension of time
In Howle v Best [2012] WASC 62, Simmonds J discussed and summarised the major factors to be considered in determining whether to grant an extension of time under r 10 of the SAT Rules. At [30] he said:
Finally, it was not in contest that the major factors to be considered by the SAT in determining under SAT Rules r 10 whether to grant or refuse an application for an extension of time to bring an application for a review are as stated in Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196, 198 (Kennedy J). I take those factors as they are reviewed with certain related matters, in relation to leave to bring an appeal, in Simonsen v Legge [2010] WASCA 238 [8] (Pullin JA, Newnes & Murphy JJA) to be as follows:
The relevant matters to consider when a party seeks to extend the time for filing its notice of appeal include the following:
(a)on the expiry of the time for appealing, the respondent has a vested right to retain the judgment unless the application for an extension of time is granted: Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458, 459;
(b)the grant of an extension of time under the rule is not automatic; the object of the rule permitting extensions of time is to ensure that the rules which fix time for the doing of acts do not become instruments of injustice; and the discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties: Gallo v Dawson (459);
(c)nevertheless, the rules of court must, prima facie, be obeyed, and in order to justify a court in extending the time, there must be some material upon which the court can exercise its discretion: Gallo v Dawson (459);
(d)there are, generally, at least four major factors to be considered, although they are not necessarily exhaustive in each case:
(i)the length of the delay;
(ii)the reasons for the delay;
(iii)the prospects of the applicant succeeding in the appeal; and
(iii)the extent of any prejudice to the respondent: Esther Investments …, 198; In de Braekt v Powell [2007] WASCA 55 [11]; (2007) 33 WAR 389;
(e)other factors may include whether the delay was intentional, or contumelious, or merely the result of a bona fide mistake or blunder, and whether the delay is that of the litigant or of its lawyers with which the litigant should not be saddled: City of Canning v Avon Capital Estates (Australia) Ltd [2009] WASCA 120 [33];
(f)the length and reasons for the delay must be addressed by the applicant and the cogency of the explanation increases as the period of the extension sought increases: Girando v Girando (1997) 18 WAR 450, 454;
(g)in relation to the third matter referred to in subpar (d) above, the time for appealing will not be extended unless the proposed appeal has some prospect of success; the converse of that proposition is not that time must be extended if an appeal has any prospect of success, but rather, the fact that an appeal has some prospect of success is a factor which is to be taken into account, together with all other relevant factors: City of Canning v Avon Capital Estates (Australia) Ltd [17]; and
(h)similarly, it is not the law that, whenever an applicant demonstrates an arguable case, or even a strongly arguable case, in the absence of significant prejudice suffered by the respondent, an extension of time should be granted: City of Canning v Avon Capital Estates (Australia) Ltd [16].
(e)other factors may include whether the delay was intentional, or contumelious, or merely the result of a bona fide mistake or blunder, and whether the delay is that of the litigant or of its lawyers with which the litigant should not be saddled: City of Canning v Avon Capital Estates (Australia) Ltd [2009] WASCA 120 [33];
(f)the length and reasons for the delay must be addressed by the applicant and the cogency of the explanation increases as the period of the extension sought increases: Girando v Girando (1997) 18 WAR 450, 454;
(g)in relation to the third matter referred to in subpar (d) above, the time for appealing will not be extended unless the proposed appeal has some prospect of success; the converse of that proposition is not that time must be extended if an appeal has any prospect of success, but rather, the fact that an appeal has some prospect of success is a factor which is to be taken into account, together with all other relevant factors: City of Canning v Avon Capital Estates (Australia) Ltd [17]; and
(h)similarly, it is not the law that, whenever an applicant demonstrates an arguable case, or even a strongly arguable case, in the absence of significant prejudice suffered by the respondent, an extension of time should be granted: City of Canning v Avon Capital Estates (Australia) Ltd [16].
The length of the delay
Mr Queen advised the Tribunal that, although the letter advising him of the decision to issue a negative notice was dated 10 December 2009, it was posted to an address at which he no longer lived. The address was one which Mr Queen had, sometime earlier, given as his residential address to the Department. The letter provides a clear statement as to the entitlement to apply to the Tribunal for review, and the time prescribed for commencement of that review. The letter clearly complied with the requirement of s 20(1) of the State Administrative Tribunal Act 2004 (WA), and time began to run under r 9 for the purposes of the SAT Rules from the date of that letter. Accordingly, an application for review was required to be lodged by 7 January 2010.
The application for extension of time was lodged at the Tribunal on 16 March 2012, some 26 months after the expiry of the 28 day period.
The reasons for the delay
Mr Queen says, and I accept, that he first learned of the issued of the negative notice when he received an email in January 2010 requesting him to call the Working with Children unit. At that time, Mr Queen had been advised that an application was to be made to include his name on the Australian National Child (Sex) Offender Register (ANCOR), being a register established under the Community Protection (Offender Reporting) Act 2004 (WA). He had engaged a solicitor in respect to that application. When he telephoned the Working with Children unit in response to the email, Mr Queen said that he advised the staff member to whom he spoke of the proposed application, and that he would speak to his lawyer for advice in relation to the negative notice.
Mr Queen said that his lawyer advised him not to appeal the negative notice until the ANCOR application was resolved, and it would be appropriate to deal with an appeal after the court had handed down a decision on the ANCOR application. It would, of course, been preferable to have commenced an application for review immediately, but he sought then to defer hearing the matter in the Tribunal until the ANCOR proceedings were completed.
On 18 January 2010, Mr Queen pleaded guilty to a number of charges of fraud in connection with attempts to obtain employment. Those charges had apparently arisen following a search of the applicant's home in October 2009. He was given a suspended sentence of two years imprisonment.
Although Mr Queen had pleaded guilty to all charges against him on 18 January 2010, he was apparently summonsed for a further offence on 25 January 2010 in relation to making a false declaration. Mr Queen said that that charge arose from the search in October 2009, and was at a loss to understand why it had not been brought and dealt with along with the other charges.
On 17 October 2010, Mr Queen rang an officer at the Working with Children unit. The respondent's record of that conversation reads, relevantly,
The applicant advised that he would like to appeal the decision to get a negative notice. I advised that he had missed the 28 day period where he could appeal to SAT. The applicant stated that he did not receive the negative notice letter. I confirm that was corrected [sic] and stated that the letter was returned to the unit stating that he no longer lived at the listed address, and the various other attempts were made to contact him via phone and email and they were unsuccessful. … The applicant said at this time he did not provide a submission or appeal, because he was dealing with court matters. The applicant spoke about wanting to cancel his negative notice. … I advised that … he would not be able to apply to cancel his negative notice for 3 years.
In any event, it appears that the ANCOR application and the outstanding charge continued, at least for some time, to be dealt with together. They were the subject of a number of adjournments. It appears that, in December 2010, the police prosecutions indicated an intention to discontinue the ANCOR application, but that decision was apparently later reversed. Eventually, the ANCOR application was dealt with in the Magistrates Court on 17 August 2011. The application was dismissed, with the Magistrate concluding that Mr Queen should not be placed on the register because the requirement that a person pose a risk to the lives or sexual safety of any one or more persons had not been established.
Mr Queen said that, after the Magistrate delivered his decision on 17 August 2011, he 'waited the 30 day waiting period' before his property was released to him. In explaining why he did not then apply for review of the negative notice, he said he was also waiting to see if there was an appeal against the Magistrate's decision. He said that his lawyer advised him that he needed to wait before he went back to work, and that he was suffering stress and anxiety and needed to see what direction he should take in his life. He said that he also needed to speak to his psychologist, which he did 'two or three weeks after the court case'.
It is apparent that he had had a discussion by telephone on 15 September 2011 with an officer of the Working with Children unit in relation to the question of cancellation of the negative notice. On 16 September 2011, he had a further discussion with an officer who explained again that he would have to wait three years before applying to have his negative notice cancelled.
On 3 November 2011, Mr Queen wrote to the Working with Children unit requesting a waiver of the three year time limit on an application to cancel the negative notice. In that letter, he said that 'it was pointless to appeal' in early 2010 because of the impending court matter.
In his oral submissions to the Tribunal, Mr Queen said that he was unaware of the role (or perhaps the existence) of the State Administrative Tribunal until early 2012. It is clear, however, that Mr Queen was aware, from at least January 2010, of the possibility of seeking review of the decision to issue a negative notice, and of the time limit which applied. His decision not to appeal was a conscious one, having regard to the pending proceedings against him. In effect, Mr Queen accepts that his prospects of a successful appeal were low in the circumstances as they existed in January 2010. In essence, his application for extension of time is based on the proposition that circumstances have now changed, in that the ANCOR application has been disposed of in his favour, so that his negative notice should now be cancelled.
Mr Queen was reminded from time to time over the two years since the negative notice was issued of the fact that the time for seeking a review of the decision had expired. Whilst it might be understandable as to why he did not seek a review before the ANCOR proceedings were completed, it was, nevertheless, a conscious decision on his part.
A period of some seven months passed between the decision on the ANCOR application, and the commencement of proceedings in the Tribunal. While Mr Queen was making enquires from time to time about the possibility of cancellation of the negative notice during that period, that does not satisfactorily explain his delay in seeking review if, as he claims, it was the outstanding ANCOR proceedings which stopped him seeking a review.
The length of the delay in this case is extraordinary. In my view, Mr Queen's explanation for his failure to seek a review is not, of itself, adequate to justify a grant of an extension of time.
The prospects of success
I accept that, as circumstances now exist, Mr Queen has a reasonably arguable basis upon which to seek cancellation of his negative notice. As observed above, however, his real contention is that, as circumstances now stand, cancellation of the negative notice is justified. It is no doubt for that reason that he has sought to persuade the Working with Children unit that the three year waiting period for an application for cancellation should be waived.
The scheme of the WWC Act is that, once a negative notice is issued, it is effective for at least three years, except in the particular circumstances described in s 19(3) of the WWC Act. To grant an extension of time to appeal would, in effect, be to confer on Mr Queen a right to seek cancellation of the negative notice after 26 months rather than 36 months.
Whilst, therefore, Mr Queen's case for cancellation of his negative notice may be arguable (although I express no view beyond that as to its merits) that is merely a factor to be taken into account. That factor has to be considered in the context of the scheme of the Act reflected in s 19(2).
Prejudice to the respondent
In the context of administrative review, prejudice to a respondent is less apparent than in civil litigation between parties. Nevertheless, the conduct of review proceedings in the Tribunal does impose a burden upon respondents. In the context of this case, however, prejudice is not a significant factor in resolution of the question.
Conclusion
For the reasons expressed above, the application for an extension of time should be refused. The delay in commencing proceedings is excessive, some 26 times the allowable period. If an extension were granted, it would, in effect, circumvent the three year time period which the legislature has determined should pass between the issue of a negative notice and an application for its cancellation. Whilst a substantial proportion of the delay might be explicable by unresolved, but highly relevant, proceedings, the delay after those proceedings were completed was itself inordinate, and was not adequately explained. For those reasons the application for extension of time should be refused and the application should be dismissed.
Order
1.The application for extension of time is refused.
2.The application is dismissed.
I certify that this and the preceding [29] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE J A CHANEY, PRESIDENT
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