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WUT v Victoria Police

WUT v Victoria Police

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Case Copied 11 September 2020 71 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 03756

WUT	Appellant
v
VICTORIA POLICE	Respondent

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 March 2020; Final written submission 6 April 2020
DATE OF JUDGMENT:	11 September 2020. First Revision 29 October 2021
CASE MAY BE CITED AS:	WUT v Victoria Police
MEDIUM NEUTRAL CITATION:	[2020] VSC 586

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ADMINISTRATIVE LAW – Private Security Licence – Renewal application – Victorian Civil and Administrative Tribunal decision affirming decision refusing renewal – Leave to appeal application – Whether questions of law – Public interest – Fit and proper person – Relevant considerations – Unreasonableness – Self-represented litigant – Procedural fairness requirements – Private Security Act 2004 s 25.

TRIBUNALS – VCAT – General procedure of VCAT – Self-represented litigants – Victorian Civil and Administrative Tribunal Act 1998 ss 98, 102.

DISCRIMINATION – Whether licence renewal questions about mental health were lawful- Questions necessary to comply with or authorised by Act – Equal Opportunity Act 2010 ss 8, 75.

HUMAN RIGHTS – Public Authority – Right to fair hearing – Overlap of issues in civil and criminal proceedings – Appropriate procedure - Right to equality before the law - Charter of Human Rights and Responsibilities Act 2006 – ss 4(1)(j), 6(2)(h), 8, 24, 38.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	In Person
For the Respondent	Mr M McLay	Victorian Government Solicitor’s Office

HIS HONOUR:

Background

In February 2018, WUT[1] applied to Victoria Police under the Private Security Act 2004 (‘the Act’) for the renewal of his Private Security Individual Operator Licence for the activity of investigator (‘licence’). WUT first obtained a licence in 2009 but it expired in April 2012 and he did not seek its renewal. In October 2014, he successfully sought a licence and in April 2018 sought its renewal. The Chief Commissioner’s delegate refused the application. A Deputy President of the Victorian Civil and Administrative Tribunal (‘Tribunal’) affirmed that decision. WUT now seeks leave to appeal to this Court against the Tribunal’s orders.
[1]This proceeding is subject to a proceeding suppression order made under the Open Courts Act 2013.

By way of background, in December 2015, Senior Sergeant D Pinner (‘Pinner’) was allocated a file about a complaint made by WUT against Leading Senior Constable S Hafner (‘Hafner’), a member of Victoria Police’s Licensing and Regulation Division (‘LRD’) following a hearing at the LRD office into whether WUT had been offering investigative services using a business name not approved by the Chief Commissioner. After Pinner spoke to WUT that complaint was resolved. However, the inquiry into his use of business names continued. There was no suggestion that WUT had ever been the subject of any complaint by a client.

In January 2016, WUT completed a Victorian Private Security Business Personal Information Form and provided it to Victoria Police in which he declared that he had not been treated for psychiatric or emotional problems.[2]

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: [2020] VSC 586
Decision Date: 11 September 2020. First Revision 29 October 2021

CaseChat Overview and Summary

WUT, an applicant for a private security licence renewal, sought leave to appeal against a Victorian Civil and Administrative Tribunal decision upholding the Victorian Police's refusal to renew their licence. The Tribunal had concluded that WUT was not a fit and proper person to hold the licence due to concerns about their mental health, which were deemed relevant under the Private Security Act 2004. WUT contested the decision, arguing that the Tribunal's approach to the issues raised was flawed and that the proceedings were unfair.

The court was required to determine whether the Tribunal erred in its interpretation of the law, particularly concerning the relevance of mental health inquiries in the context of a licence renewal application. Additionally, the court had to assess whether the Tribunal afforded WUT the procedural fairness required under the law, especially since WUT was self-represented. The court also considered whether the questions asked about WUT's mental health were necessary and lawful under the Equal Opportunity Act 2010, and whether the proceedings complied with the Charter of Human Rights and Responsibilities Act 2006.

In reviewing the decision, the court found that the Tribunal did not err in its application of the law and that the questions regarding mental health were indeed relevant and necessary to assess WUT's fitness to hold a security licence. The court held that the Tribunal appropriately considered WUT's responses and that there was no procedural unfairness in the way the hearing was conducted. The court also found that the proceedings were in line with the principles of the Charter of Human Rights and Responsibilities Act 2006, ensuring equality before the law and a fair hearing.

Consequently, the court dismissed WUT's application for leave to appeal, affirming the Tribunal's decision that WUT was not a fit and proper person to hold a private security licence. The court's decision underscored the importance of considering relevant factors in assessing the suitability of a licence holder and the necessity of mental health inquiries in such assessments.

Orders