JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION -v- "C" [2007] WASCA 172

BETWEEN : CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION

Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA

Citation : C and CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR COMMUNITY DEVELOPMENT [2007] WASAT 116

Application for a stay of orders made by State Administrative Tribunal pending determination of appeal - Section 106 of the State Administrative Tribunal Act 2004 (WA) - Where Tribunal ordered that respondent was entitled to an assessment notice issued under s 12(4) of the Working with Children (Criminal Record Checking) Act 2004 (WA) - Where appellant issued assessment notice to respondent after commencing appeal but before applying for a stay - Where application, in substance, is an application for rescission or cancellation of the assessment notice issued to the respondent

State Administrative Tribunal Act 2004 (WA), s 105(1), s 105(2), s 105(3), s 105(9), s 106

Supreme Court (Court of Appeal) Rules 2005 (WA), r 3(1), r 43(2)(h)

Working with Children (Criminal Record Checking) Act 2004 (WA)

1 BUSS JA: On 8 June 2007, the appellant filed an appeal notice in this Court, pursuant to s 105(1) of the State Administrative Tribunal Act 2004 (WA) ("the SAT Act"), against a decision of the State Administrative Tribunal ("the Tribunal"). The appellant requires leave to appeal. If leave is granted, the appeal can be brought only on a question of law. See s 105(1) and (2). The appeal lies to this Court if the decision was made by a judicial member, or the Tribunal constituted by members who include a judicial member. See s 105(3)(a).

2 The Working With Children (Criminal Record Checking) Act 2004 ("WWC Act") prohibits a person from being employed in "child-related work" unless the person has a current "assessment notice". The respondent applied to the appellant for an assessment notice, stating that he was engaged in child-related work as a volunteer tee-ball coach. He was issued with a "negative notice". The respondent applied to the Tribunal for a review of that decision. On 22 May 2007, the Tribunal allowed the review application, set aside the appellant's decision and, in essence, ordered the appellant to cause the respondent to be issued with an assessment notice in accordance with the Tribunal's reasons.

3 The Tribunal summarised its decision, at [1] - [5] of its reasons, as follows:

"In 1997 the applicant was indicted on charges of indecently dealing with a child under the age of 13. In early 1999, those charges were tried in the District Court of Western Australia and the applicant was convicted of two counts of indecently dealing with a child under the age of 13. The conviction was set aside by the Court of Criminal Appeal in late 1999, and the Director of Public Prosecutions elected not to proceed with a retrial.

In April 2006, the applicant applied for an assessment notice under s 9(1) of the Working with Children (Criminal Record Checking) Act 2004 (WA). His application was rejected on the basis of the non-conviction charges for Class 2 offences. The applicant then sought review of that decision by the Tribunal.

The Tribunal considered the grounds on which the applicant's conviction was set aside and weighed the evidence before it. The Tribunal found that there was insufficient evidence to support a finding that the applicant did indecently deal with the complainant.

In deciding the review application de novo, the Tribunal gave close consideration to the factors outlined in s 12(8) of the Working with Children (Criminal Record Checking) Act 2004. The Tribunal found that the particular circumstances of the case did not justify the issue of a negative notice.

The Tribunal also found that it was appropriate to make an order suppressing the publication of the applicant's name, as to publish the name would not be in the interests of justice."

"For the reasons given above, the Tribunal orders that:

1. The review application is allowed.
2. The decision of the CEO under review is set aside.
3. The applicant is entitled to an assessment notice issued under s 12(4) of the Working with Children (Criminal Record Checking) Act 2004 (WA).
4. the CEO (or delegate) of the Department for Community Development take such steps as are necessary to cause the applicant to be issued with an assessment notice under s 12(4) of the Working with Children (Criminal Record Checking) Act 2004 in accordance with this decision.
5. The name of the applicant is not to be published.
6. The materials received by the Tribunal in support of the application are not to be published."

Events after the Tribunal delivered its decision and made its orders

5 As I have mentioned, on 22 May 2007, the Tribunal delivered its decision and made its orders.

6 As I have also mentioned, on 8 June 2007, the appellant filed an appeal notice in this Court. The last date for filing that notice was 19 June 2007.

7 On 13 June 2007, the appellant issued an assessment notice to the respondent, as required by the Tribunal's orders.

8 On 10 July 2007, the appellant made an application in the appeal for:

"An order pursuant to s 106 of the State Administrative [Tribunal] Act 2004 staying the operation of orders 1 to 4 ... pending the determination of the application for leave to appeal and the appeal."

9 On 27 July 2007, the appellant sought amended orders in relation to its application in the appeal, as follows:

"1. An order that the operation of orders 1 to 4 made by the State Administrative Tribunal on 22 May 2007 are stayed pending the determination of the application for leave to appeal.

1. An order that upon granting of leave to appeal, the operation of orders 1 to 4 made by the State Administrative Tribunal on 22 May 2007 are stayed pending the determination of the appeal.
2. An order that the Assessment Notice issued on 13 June 2007 is set aside.
3. An order that the Negative Notice issued on 17 October 2006 remains current and operative pending the outcome of the application for leave to appeal and appeal.
4. An order that the costs of the appellant's application for a stay be reserved."

10 The appellant's application was supported by an affidavit dated 10 July 2007 sworn by Paul Dixon, a legal practitioner employed by the Department for Child Protection. The respondent swore an affidavit on 26 July 2007 in opposition to the application.

"The Supreme Court may, by order, stay the operation of a decision of the Tribunal pending the determination of an application for leave to appeal from the decision and of any appeal."

By s 106(2), subject to any order made by the Supreme Court, an appeal does not affect the operation of the decision appealed against or prevent the taking of action to implement the decision.

12 Rule 43(2)(h) of the Supreme Court (Court of Appeal) Rules 2005 (WA) states that a single Judge of this Court has jurisdiction to make "an interim order in an appeal". The term "interim order" in an appeal is defined in r 3(1) to mean, relevantly:

" ...

(b) an order staying the proceedings in the primary court or the execution of the primary court's decision;

...

(h) any other order that the Court of Appeal may make before the appeal is concluded, other than an order giving or refusing to give leave to appeal;"

13 A stay maintains the status quo which existed before the court or tribunal made the orders which are under appeal. See Edelsten v Ward [No 2] (1988) 63 ALJR 346 at 346; Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd [1987] HCA 45; (1987) 61 ALJR 612 at 614.

14 The criteria which are relevant to the exercise of this Court's discretion to grant a stay of orders, pending the determination of an appeal, were summarised by Murray and Parker JJ in Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308, at 311 [9]:

"• The successful litigant at first instance will ordinarily be entitled to enforce the judgment pending the determination of any appeal.

• It is for the applicant for a stay to move the court to a favourable exercise of its discretion.
• It will not do so unless special circumstances are shown justifying the departure from the ordinary rule.
• The central issue will be whether the grant of a stay is perceived to be necessary to preserve the subject matter or the integrity of the litigation, or where refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal. It is often put shortly that it will first and foremost be necessary to establish that without the grant of a stay, the right of appeal, whether upon the grant of leave or special leave or not, will be rendered nugatory.
• If that can be demonstrated, the stay will generally still be refused unless it can be established that the appeal process, whether upon the grant of leave or special leave or not, has ultimately reasonable prospects of success so as to result in the grant of relief to the appellant.
• If that hurdle can be overcome, the stay may still be refused where it appears that the balance of convenience does not lie in favour of the applicant; where, for example, the grant of a stay will occasion hardship to the respondent which may not be alleviated by the terms upon which the stay may be granted."

15 The public interest, including any risk to the safety of the public or any section of it, may be a material factor (and, depending on the circumstances, a very significant factor) in determining whether to grant a stay. See Jemielita v The Medical Board of Western Australia, unreported; SCt of WA (Ipp J); Library No 920389; 24 July 1992. In that case, the applicant was a medical practitioner who had been found guilty by the Medical Board of Western Australia of two counts of gross incompetency or carelessness, two counts of gross incompetency and two counts of infamous conduct. After the Board's findings, the applicant's name was struck off the medical register. The applicant appealed against the Board's findings and sought a stay, pending the determination of the appeal, of the Board's order striking his name from the register. Ipp J refused to grant a stay. His Honour said, at page 12:

"In weighing the balance of the competing interests it seemed to me that the application for a stay should be refused.

The harm to the public interest in allowing a medical practitioner to practise, pending the appeal, is potentially substantial should the findings of the Board stand. I do not think that that harm is significantly reduced by the undertakings offered. The gross incompetency found casts doubt on the applicant's ability in regard to all aspects of medical practice. The same applies to the findings of infamous conduct which are based on dishonesty. The 'fruit of the litigation' to which the Board would ordinarily be entitled is prohibition against the applicant practising medicine."

His Honour held that those matters outweighed significantly any prejudice to the applicant or others arising from the refusal of a stay.

16 As I have mentioned, the nature and effect of a stay is to preserve the status quo which existed before the court or tribunal made the orders which are under appeal.

17 In the present case, the Tribunal made the orders in question on 22 May 2007. The appellant filed the appeal notice on 8 June 2007. The last day for filing an appeal notice was 19 June 2007. On 13 June 2007, the appellant issued an assessment notice to the respondent, as required by the Tribunal's orders. The appellant did not file the application for a stay until 10 July 2007.

18 The appellant's application is, in form, an application for a stay. A stay cannot, however, be granted in that the status quo which existed before the Tribunal made its orders was disturbed by the appellant's action in issuing an assessment notice to the respondent instead of making application for a stay contemporaneously with the filing of the appeal notice. The appellant elected to issue the assessment notice rather than apply for a stay. At all material times, the appellant has been represented by a legal practitioner. It knew the material facts and made the election in the knowledge of those facts.

19 The appellant's application is, in substance, an application for the rescission or cancellation of the assessment notice issued to the respondent. Assuming, without deciding, that I have power to make an order to that effect in the context of this application, the appellant has not placed before this Court any evidence of facts and circumstances which were unknown to, and could not have been contemplated by, the appellant when the assessment notice was issued, and which would justify such an order.

20 Counsel for the appellant referred, in argument, to s 105(9) of the SAT Act, which provides:

"The court dealing with the appeal may -

(a) affirm, vary, or set aside the decision of the Tribunal;

(b) make any decision that the Tribunal could have made in the proceeding_;_ or

(c) send the matter back to the Tribunal for reconsideration, either with or without the hearing of further evidence, in accordance with any directions or recommendations that the court considers appropriate,

and, in any case, may make any order the court considers appropriate."

Section 105(9) appears to set out the powers of a court hearing an appeal from a decision of the Tribunal in relation to the final disposition of the appeal. In any event, it does not assist the appellant in relation to a stay, properly so called, which is specifically governed by s 106 of the SAT Act and also, in the case of an appeal to this Court, the Court of Appeal Rules which I have mentioned.

21 For the reasons I have given, the appellant's application will be dismissed.

The listing of the application for leave to appeal and, if leave is granted, the appeal for hearing

22 I should mention that after perusing the Tribunal's reasons and the grounds of appeal, I was satisfied that the application for leave to appeal and, if leave is granted, the appeal have, at least, reasonable prospects of success. The issues raised are of public importance. On 30 July 2007, I therefore made an order expediting the hearing of the proceedings and an order that the application for leave be heard together with the appeal. The application and the appeal will be heard on 5 September 2007 at not before 2.15 pm. I had offered the appellant an earlier date, namely 24 August 2007, but that was rejected on the basis that the appellant's counsel of choice was unavailable.