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| 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.
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- Case
- [2003] VSC 386
- Decision Date
CaseChat Overview and Summary
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
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Background
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Evidence
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