Secretary to the Department of Justice and Regulation v CZQ
[2018] VSC 462
•21 August 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2018 02376
| SECRETARY TO THE DEPARTMENT OF JUSTICE AND REGULATION | Applicant |
| v | |
| CZQ | First Respondent |
| VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL | Second Respondent |
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JUDICIAL REGISTRAR: | Clayton JR |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 July 2018 |
DATE OF RULING: | 21 August 2018 |
CASE MAY BE CITED AS: | Secretary to the Department of Justice and Regulation v CZQ & Anor |
MEDIUM NEUTRAL CITATION: | [2018] VSC 462 |
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PRACTICE AND PROCEDURE – Stay – Application for stay of VCAT orders that the respondent be granted a working with children certificate – Where applicant is appealing VCAT decision – Whether special circumstances arise – Whether arguable grounds of appeal – Whether not allowing the stay would render the appeal nugatory – Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P Hanks QC Mr A Sim | Working with Children Check Unit |
| The Respondent appeared in person |
JUDICIAL REGISTRAR:
Introduction
This is an application for a stay of the orders of VCAT made on 24 May 2018 in favour of the respondent. Those orders required that the applicant issue an assessment notice to CZQ to engage in any type of child-related work without conditions, within the meaning of s 9 of the Working With Children Act 2005 (Vic) (‘the WWC Act’).
In determining whether to grant the applicant a stay, I must consider whether there are special circumstances warranting the stay.
Background
On 14 February 2017, CZQ applied to the Secretary to the Department of Justice and Regulation (‘the Secretary’) for a working with children check and an assessment notice on completion of that check.[1]
[1]Affidavit of Alison Stacy Kingston sworn 21 June 2018, [5].
On 20 October 2017, the delegate of the Secretary gave CZQ a negative assessment notice and provided a statement of reasons .[2]
[2]Ibid [8].
On 9 November 2017, CZQ applied to VCAT for review of that decision. On 24 May 2018, the Tribunal member ordered the Secretary to issue an assessment notice to CZQ. In compliance with those orders the Secretary issued an assessment notice to CZQ on or about 5 June 2018. The Secretary now seeks an order to stay the operation of that assessment notice.
CZQ opposes the application for a stay. He filed an affidavit dated 20 July 2018 which I have read. Paragraph 5 of that affidavit has been struck out as it contains scandalous material.
CZQ informed the Court that he was currently employed full time in an occupation that required him to travel interstate on a frequent basis, and that attending Court was difficult as he did not have very much advance notice of his schedule. He informed the Court that his current occupation did not require him to have an assessment notice, but that if his occupation changed, he may seek work which would require him to have an assessment notice.
Analysis
Rule 4.04 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (Vic) provides:
Except as otherwise provided by any Act or Rule—
… (c) the appeal or the application for leave to appeal shall not operate as a stay of proceedings unless the Court otherwise orders.
Rule 66.16 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) provides:
The Court may stay execution of a judgment.
The following principles in Maher v Commonwealth Bank of Australia are applicable:[3]
[3][2008] VSCA 122 (Dodds-Streeton JA).
Prima facie, a successful party is entitled to the benefit of the judgment obtained below and the presumption that the judgment is correct. The applicant for a stay therefore bears the onus of demonstrating that a stay is justified.
In Cellante and Ors v G Kallis Industries Pty Ltd (‘Cellante’), Young CJ (with whom Brooking J agreed), cited with approval the observation of Mahoney JA (with whom Moffit P and Glass JA agreed) in Re Middle Harbour Investments Ltd (in liq) that:
…where an applicant for a stay has not demonstrated an appropriate case but has left the situation in the state of speculation or of mere argument, weight must be given to the fact that the judgment below has been in favour of the other party.
Young CJ concluded that an application for a stay under Rule 66.16 must show special or exceptional circumstances to take the case out of the general rule that an appeal does not operate as a stay.
The Court has a wide discretion, which is not circumscribed by rigid rules. It should take into account all the circumstances of the case.
In Scarborough’s v Lew’s Junction Stores Pty Ltd (approved in Cellante), Adam J recognized that special circumstances might exist where a successful appellant would be deprived of the fruits of the appeal if a stay of execution were not granted. In such a case, the appeal might be rendered nugatory.
In Cellante, Young CJ stated that special circumstances would “exist where for whatever reason, there is a real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed”.
An appeal could be rendered nugatory in a variety of ways. The test could be satisfied where a defendant appeals and there is a real risk that the plaintiff would remove the proceeds of the judgment from the jurisdiction. Similarly, special circumstances may be recognised where, for example, although the respondent is solvent, the subject matter of the appeal is, in substance, irreplaceable.
The prospect that the appeal may be rendered nugatory must be balanced against the principle that the successful party is entitled to the fruits of the judgment. A stay should not be granted unless there is at least an arguable ground of appeal, although otherwise speculation as to the ultimate prospects of success is usually inappropriate.[4]
[4]Ibid [20]–[27].
The Secretary contends that the Court should exercise its wide discretion because there is a real risk that the appeal will be rendered nugatory if the stay is not granted and there are at least reasonable prospects that the appeal will succeed.
The Secretary argues that, if the stay is not granted, CZQ will be able to seek and obtain any type of child related work without restriction.
The Secretary submits that the Tribunal should have found that CZQ presented an unjustifiable risk to the safety of children. Allowing CZQ to engage in any type of child related work before this Court has had an opportunity to determine whether the Tribunal fell into error would render the appeal nugatory, as the unjustifiable risk to children, that the Secretary contends CZQ poses, will have already occurred.
The Secretary submits that it has arguable grounds of appeal which are set out in the Notice of Appeal, filed 21 June 2018.
In particular the Secretary contends that the Tribunal erred in law in failing to have regard to all of the offences with which CZQ had been charged, or convicted, or found guilty, when purporting to discharge the obligations imposed by s 26C(1) and s 14(3) of the WWC Act.
Further, the Secretary contends that by permitting CZQ to give unsworn evidence, and relying on that unsworn evidence in making findings of fact, the Tribunal contravened s 102(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), denied the Secretary procedural fairness, and failed to confirm to s 1A of the WCC Act.
The Secretary contends that the fact that the appeal would be rendered nugatory if the stay were not granted amounts to special circumstances.
Other than submitting that the decision of the Tribunal should stand, CZQ did not make any substantive submissions as to why the stay should not be granted. He drew the Court’s attention to the fact that there some considerable delay between applying for the assessment notice and receiving a negative response. He says that during that application process there was ‘no immediate concern for my working with children and was [sic] able to work with children’.[5] He said that the applicant had not mentioned any ‘concerns of unfairness in VCAT hearings and had ample opportunity to do so’, that they did not call any witnesses to ‘verify their submissions’ and submitted unsworn evidence and unsupported documents which denied him ‘opportunities to cross examine their witnesses of supplied documents’.[6]
[5]Affidavit of CZQ sworn 21 July 2018, [4].
[6]Ibid [11].
CZQ is, prima facie, entitled to the fruits of his verdict at the Tribunal. This means that, absent a stay, he is entitled to seek any child related work without restriction. A stay would limit the work that he is able to seek and restrict his volunteer activity within the community.
Balanced against this right is the prospect that not allowing a stay would render the appeal nugatory, and the concern that this Court must have to ensure that any risk posed to children is not an unjustifiable risk.
This case is not easily analogous to other cases that have dealt with this issue. It is not a case between franchisee and franchisor, such as in Bytan Pty Ltd v BB Australia Pty Ltd where Osborn JA found that a stay was warranted in that case because:
The balance of discretionary factors significantly favours a stay, provided it is offset by appropriate conditions. More particularly, if no stay is granted, the appellant is at risk of substantial and irreparable loss which would, in effect, render the outcome of a successful appeal nugatory in practical terms. On the other hand, the respondent can be protected against any consequential loss flowing from a stay if the appeal is ultimately unsuccessful.[7]
[7][2012] VSCA 116, [14].
Neither is it a case between a mortgagor and mortgagee, such as in Maher v Commonwealth Bank of Australia,[8] where a stay was sought on an order for removal of caveats and to restrain the mortgagee from selling the disputed land as the appeal would be irrelevant by the sale of the land. That application was denied on the grounds there were no special circumstances warranting the stay.[9]
[8][2008] VSCA 122.
[9]Ibid [69], [72].
Nor is it a case such as Cellante v G Kallis Industries Pty Ltd & Ors,[10] where orders were made against the applicant for $1 million. A stay against those orders was granted due to the financial situations of the respondents. Special circumstances were considered to exist where there was a real risk that, if successful, the applicant could not be restored substantially to their position prior to the judgment.
[10][1991] 2 VicRp 99.
However I am satisfied that the risk that the appeal would be rendered nugatory, in circumstances where the consequences of that risk eventuating are significant, amounts to special circumstances.
Given my findings that the applicant has established special circumstances, I turn now to whether there is an arguable ground of appeal.
Is there an arguable ground of appeal?
By Notice of Appeal, filed on 21 June 2018, the applicant seeks leave to appeal against the judgment of VCAT on the following grounds:
(a) that the Tribunal member failed to have regard to all of the offences with respect to which CZQ had been charged, convicted, or found guilty;
(b) that the Secretary was denied a reasonable opportunity to cross examine the respondent and was denied procedural fairness; and
(c) that the Tribunal member failed to give paramount consideration to the protection of children from sexual and physical harm.
The Secretary submits that, pursuant to s 14(1)(c) of the WWC Act, s 14(3) requires the Secretary and, consequently the Tribunal on review, to take into account any offence with which an applicant has been charged, or of which an applicant has been convicted or found guilty.
The Secretary submits that the Tribunal member:
(a) failed to consider all the offences and considered only two charges of ‘contravene interim family violence order’;
(b) did not consider the other 5 offences set out in the Notice of Appeal at para 1.3 in addressing s 14(3)(a)(b)(d)(e)(f)and (g) of the WWC Act; and
(c) only considered one offence in addressing s 14(3)(c) of the WWC Act.
The Secretary submits that this failure to consider all the charges meant that the Tribunal member erred in law by not having regard to mandatory matters that the member was required to address pursuant to s 26C(1) and s 14(3) of the WCC Act. The Secretary submits that this amounts to a jurisdictional error.
Further the Secretary submits that the Tribunal member denied the Secretary an opportunity to cross-examine CZQ on his unsworn evidence, and relied on the unsworn evidence in making the determination. The Secretary submits that this was a denial of procedural fairness and points to the findings of Habersberger J in Leon Holdings Pty Ltd v O’Donnell[11] that where the Tribunal denies a party a reasonable opportunity to cross-examine a witness, the Tribunal’s decision should be set aside.
[11][2009] VSC 430.
I have reviewed the decision of the Tribunal member and the grounds of appeal of the Secretary. I accept that there are sufficiently arguable grounds of appeal.
Decision
CZQ wishes to have the option of seeking child-related work, regardless of whether he exercises that option. If the stay is not granted, CZQ may or may not exercise his option.
The Secretary wishes to avoid any potential risk to children and wishes to do this by ensuring that CZQ does not engage in child related work. Granting the stay does not ensure that children are not harmed, just as not granting the stay does not result in children being harmed. The Court must strike the appropriate balance between a potential risk to children and CZQ’s entitlement to pursue his career options however he wishes.
I might have formed a different assessment of the correct balance if CZQ was currently reliant on an assessment notice for his employment. However, whilst removing the entitlement of CZQ to seek child related work for any period is a significant constraint on CZQ’s rights, the need to ensure that even a remote risk to children is removed weighs the balance more heavily in favour of granting the stay.
If CZQ’s employment status changes, or he wishes to seek child related work, which is precluded by the operation of the stay, he would, in my view, be entitled to return to the Court and make an application for the stay to be removed. At that time the balancing exercise that would need to be undertaken might yield a different result.
However, in the present circumstances I am prepared to grant a stay on the orders of VCAT made on 24 May 2018, until the determination of this proceeding.
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