Secretary to the Department of Justice v XQH

[2012] VSCA 72

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2011 0171

SECRETARY TO THE DEPARTMENT OF JUSTICE
	Applicant
v.
XQH	Respondent

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JUDGES:	WARREN CJ and BONGIORNO JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 March 2012
DATE OF JUDGMENT:	20 April 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 72

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CIVIL PROCEDURE – Application for extension of time in which to file notice of appeal – Leave to appeal granted but applicant failed to file notice of appeal within prescribed time – Matter of public interest – Whether applicant should be required, as condition for granting extension of time, to undertake to pay the respondent’s costs of the appeal in any event.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms R Ellyard	Victorian Government Solicitor's Office
For the Respondent	Mr M Pearce SC	Corrs Chambers Westgarth

WARREN CJ
BONGIORNO JA:

Introduction

1. This is an application by the Secretary to the Department of Justice (‘the Secretary’) for an extension of time under r 64.03(1) of the Supreme Court (General Civil Procedure) Rules 2005 (the ‘Rules’) to file and serve a Notice of Appeal against orders made by the Victorian Civil and Administrative Tribunal (‘VCAT’).

1. This application arises out of a decision by the Secretary to refuse an assessment notice to XQH, who had applied to her for a Working With Children check pursuant to the Working With Children Act 2005 (Vic) (the ‘WWC Act’). XQH sought review of the Secretary’s decision in VCAT and on 4 October 2011 VCAT ordered the Secretary to grant XQH an assessment notice.

1. On 16 December 2011 the Court of Appeal granted the Secretary leave to appeal VCAT’s decision. The Secretary did not, however, file and serve her Notice of Appeal and Notice of Proposed Contents of the Appeal Book within the timeframe prescribed by the Rules. Accordingly, the Secretary now seeks the following orders:

1.        an extension of time for the filing and serving of its Notice of Appeal;

2.        an order that the appeal not be taken to be abandoned.

1. For reasons that follow, we will makes the orders sought by the Secretary but only on the condition that the Secretary undertakes to pay XQH’s costs of the appeal in any event.

Background facts

1. On 18 September 1999 XQH pleaded guilty in the Children’s Court to five counts of sexual penetration of a child under 10, and two counts of indecent acts with a child under 16.  XQH committed these offences between 1 January 1999 and 5 February 1999.  At the time of the offences, XQH was 16 years old and the victim was 9 years old.  The Children’s Court did not record a conviction and placed XQH on a 12-month probation to undertake a sex offender treatment program.

1. Section 1(1) of the WWC Act requires all persons engaged in ‘child related work’ to undergo a process of assessment known as a Working With Children check and secure a ‘current assessment notice’ from the Secretary. In July 2010, XQH applied for a Working With Children check pursuant to this provision. On 5 April 2011 the Secretary refused the application and issued XQH a negative notice. The refusal was based on XQH’s offending described above.

1. On 2 May 2011 XQH applied to VCAT for a review of the Secretary’s decision.  On 4 October 2011 a Vice-President of VCAT found in XQH’s favour and ordered the Secretary to grant XQH an assessment notice that would enable him to undertake ‘child related work’.

1. By Summons dated 2 November 2011, the Secretary sought leave to appeal against VCAT’s decision.  The Court (Buchanan and Hansen JJA) granted leave to appeal on 16 December 2011 and ordered that the appeal be heard together with the similar proceedings in Secretary to the Department of Justice v LMB and Secretary to the Department of Justice v PMY.  The Court stayed VCAT’s order pending the hearing and determination of the appeal.  The Court also ordered that the costs of the leave hearing be costs in the appeal.

1. The Secretary did not file the Notice of Appeal and the Notice of Proposed Contents of the Appeal Book within the period prescribed by the Rules.

The disposition of the application

1. XQH was not legally represented on the leave application.  We were informed that he did not make any submissions with respect to costs or conditions of leave being granted as he did not understand the proceeding.

1. Before us, XQH was represented by senior counsel.  XQH did not oppose the Secretary’s application.  As a matter of general approach, where the delay arises from oversight, is of short duration and there is no prejudice to a respondent, the Court is generally disposed to grant the indulgence sought.  However, high standards are set for government parties who will ordinarily be expected to conduct themselves as a model litigant.  Here it was most unfortunate that such a government agency did not operate in a model way.  Given the candid explanation of the error and oversight by the Secretary’s solicitor, the number of days and the limited prejudice to XQH, we would grant the indulgence. 

1. However, that is not the end of the matter.  Counsel for XQH urged us to attach a condition to the indulgence and require the Secretary to undertake to pay XQH’s costs regardless of the outcome of the appeal. 

1. On the application for leave to appeal, the Court expressed reservations as to the strength of the applicant’s case on appeal but noted that the question as to how the consideration of public interest under the WWC Act was to be treated in review of checks under the Act was potentially a ‘matter of some importance’. Counsel for the Secretary conceded before us that this appeal was a matter of importance and, also, that the point had not yet been determined by this Court.

1. On occasion, the High Court has granted special leave on a test case on a point of general application upon the condition of an undertaking by the applicant / appellant that it will pay the respondent’s costs of the appeal irrespective of its outcome.[1]

   [1]See, eg, Maurice Blackburn Cashman v Brown (2011) 242 CLR 647, [43]; Amaca Pty Ltd v Booth 283 ALR 461, [150]; Australian Crime Commission v Stoddart [2011] HCA 47, [42]; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594, [45].

1. It would appear that where a party has a less than or barely arguable case but an important principle of public interest is potentially involved, leave will be sometimes granted on the condition of the undertaking as to the other party’s costs.  Here the matter falls squarely within those parameters.  Ordinarily such undertaking would be considered at the leave point.  XQH, however, lacked the legal knowledge and wherewithal to make such a proposition.  We are not concerned here with leave but we are concerned with an indulgence sought by a model litigant who wishes to reactivate an abandoned appeal and who concedes the public importance of the appeal itself.  In the overall context it is an indulgence of a higher order than would ordinarily be the case.  This arises in the context of a respondent who engaged in the subject activity 12 years ago, was then a teenager of 16 years and is now an adult of 28 years.  His conduct was attributed to his immaturity and he has not reoffended.  He is employed as an ambulance driver and needs on occasion to drive children as patients at sporting events.  The Secretary exercised her statutory powers and precluded XQH from his desired form of employment on 5 April 2011.  He has now waited a year to finalise the matter.  That delay is now extended.  Whilst XQH may for a period of almost three weeks thought all this was behind him, he now faces the prospect of the appeal being reactivated, it having been abandoned, entirely through the fault of the Secretary.  We consider the nature of the indulgence sought, combined with the acknowledged public interest element of the appeal, warrant the imposition of the condition of the undertaking upon the Secretary. 

1. In argument, counsel for the Secretary submitted that the undertaking was unnecessary because XQH was protected by the provisions of the Appeal Costs Act 1998.  We do not accept this submission for four reasons.  First, XQH needs the certainty of costs now whereas under the appeal costs arrangements he would be dependent upon the appellate court granting him a certificate.  Secondly, in our view it would be an abrogation of the applicant’s responsibilities as a model litigant to dismissively assert that a public fund could meet the costs in the event.  Thirdly, there would, in our view, be a prospect of an abuse of the beneficial purpose of the Appeal Costs Fund if it was used by a government agency to avoid a costs obligation when it was seeking the benefit of a determination at appellate level of what it asserted to be an important principle.  Finally, the indemnity under the Act is capped and so there is no guarantee that XQH would not end up out of pocket.

1. The other argument made for the Secretary was that the question of an undertaking as to the costs could be stood over to the appeal.  We reject that argument.  Logically, the question of the undertaking can only be given prospectively, not retrospectively.

1. For these reasons, we will grant the indulgence on the condition that the Secretary undertakes to pay XQH’s costs of the appeal irrespective of the outcome.