Van Phuc Diep v Appeal Costs Board - [2003] VSC 386

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7947 of 2002

IN THE MATTER of Certificates dated 19 July 2001 and 23 August 2001 issued under the Appeal Costs Act 1998

- and -

IN THE MATTER of an Order for Review pursuant to Sections 3 and 4 of the Administrative Law Act 1978

VAN PHUC DIEP	Applicant
v
APPEAL COSTS BOARD	Respondent

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JUDGE:	GILLARD J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 August 2003
DATE OF JUDGMENT:	15 October 2003
CASE MAY BE CITED AS:	Van Phuc Diep v Appeal Costs Board
MEDIUM NEUTRAL CITATION:	[2003] VSC 386

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ADMINISTRATIVE LAW ACT 1978 – Order for Review naming as a party a non-legal person – Error curable under slip rule – Appeal Costs Act 1998 – Powers of Appeal Costs Board – No power to amend indemnity certificate – Not denial of natural justice not to respond to question of law by applicant for payment of costs under indemnity certificate.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P.G. Nash Q.C.	Access Law Lawyers
For the Respondent	Mr R.R.S. Tracey Q.C. with Dr K.L. Emerton	Victorian Government Solicitor

TABLE OF CONTENTS

Parties................................................................................................................................................... 2

The Granting of Certificates............................................................................................................ 3

Jurisdiction Under the ALA............................................................................................................. 6

Preliminary Question...................................................................................................................... 10

The Review........................................................................................................................................ 13

HIS HONOUR:

This is a return of an order calling upon a tribunal to show cause why decisions made by it should not be reviewed pursuant to the provisions of the Administrative Law Act 1978 (“the ALA”).

Parties

The applicant, Van Phuc Diep (“the applicant”), is a person who was charged with a number of serious drug offences and at the time when the decisions were made, was an inmate of Port Phillip Prison.

The respondent, the Appeal Costs Board (“the Board”), is a statutory body continued by the Appeal Costs Act 1998 (“the Act”). The Board comprises a number of persons appointed by the Attorney‑General. A member holds office for a period of three years.[1] The Act repealed the Appeal Costs Act 1964.[2] The former Act established the Appeal Costs Board and the new Act continued it.[3] However, it is clear from both the 1964 and the 1998 Acts, that the Board is not a body corporate.
[1]See ss.22 and 23 of the Act.
[2]See s.45.
[3]See s.20.

At the outset a question arises as to whether the Board can be joined as a party, because it is not a legal person. In Murphy v Obst,[4] a judicial review of a decision made by members of the Board pursuant to Order 56 of the Rules of Court was brought in the names of the members of the Board who made the decision as defendants. As the Board may from time to time comprise a number of different persons, the proper parties to the present proceeding must be the particular members of the Board who made the decisions which are sought to be reviewed.
[4][1996] 2 VR 613.

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: [2003] VSC 386
Decision Date: 15 October 2003

CaseChat Overview and Summary

Van Phuc Diep, the appellant, brought a case against the Appeal Costs Board, the respondent, regarding the review of an order for costs. The Federal Circuit and Family Court of Australia heard the matter. The central dispute was whether the Appeal Costs Board had the authority to amend an indemnity certificate, a question that arose when the Board purported to amend the certificate without notifying the appellant.

The court needed to determine whether the Appeal Costs Board had the legal power to alter the indemnity certificate and whether failing to notify the appellant constituted a breach of natural justice. The appellant argued that the Board’s actions were beyond its statutory powers and contravened principles of fairness. The Board, on the other hand, maintained that its actions were within the scope of its authority and did not prejudice the appellant’s rights.

The court concluded that the Appeal Costs Board did not have the power to amend the indemnity certificate, a point that was not in dispute. The court further determined that the failure to notify the appellant did not amount to a breach of natural justice in the context of the Board’s statutory duties. The court found that the error in naming the appellant in the order for review was curable under the slip rule, thereby rendering the procedural error inconsequential to the substantive rights of the parties.

The final orders of the court were that the appeal was dismissed with no orders as to costs.

Orders