Department of Human Services v Thwaites [1999] VSC 163

Supreme Court of Victoria|1999-05-27|Before: BEACH, J.

On 15 January 1999 Senior Member Preuss of the Victorian Civil and Administrative Appeals Tribunal ordered in proceeding No. 29365 of 1996 in the Tribunal that the Department of Human Services release to the respondent John Thwaites documents identified in the proceeding before the Tribunal as part of document 34, document 35 and documents 39(a), (b), (c) and (d).

On 31 March 1999 the Department made application to a Master of the Court for leave to appeal against the determination of the Tribunal. The application was made pursuant to the provisions of s.148(1)(b) of the Victorian Civil and Administrative Tribunals Act 1998 and Order 4 of Chapter II of the Supreme Court (Miscellaneous Civil Proceedings) Rules 1998.

The Department now appeals to a Judge of the Court concerning the Master's refusal to grant it leave in respect of document 35.

It has long been the practice in this Court and the High Court, not to give reasons for granting leave to appeal in a particular case or for refusing leave to appeal. The matter was adverted to by Fullagar, J. in Leighton Contractors Pty. Ltd. v. Kilpatrick Green Pty. Ltd. [1992] VicRp 83; (1992) 2 V.R. 505.

Although that was a case in which the Full Court was determining an appeal from the decision of a single Judge of the Court whereby the Judge had refused leave to a party to appeal from an interim award of an arbitrator, his Honour's observations are equally application to an appeal from the decision of a Master of the Court refusing a party leave to appeal from a decision of the Tribunal. At p.514 Fullagar, J. said:

"I have spoken above of a yielding to temptation, and it is of course a natural and instinctive wish of judges to give reasons for their decisions, so that their decisions may be seen to be the rational dictate of the law rather than the result of their own individual opinions or prejudices. But in this particular field, paradoxically, the giving of reasons may be seen to be decidedly inimical, in the long run, to the doing of justice between the parties, and especially so in modern times when every utterance of a judge is likely to be reported, or misreported in some book or self-styled law report. If reasons are given, they will be seized upon as the laying down and application of a principle, rather than merely the application, to all the circumstances of the individual case, of a wide judicial discretion. After the first half dozen reported decisions the discretion will begin to take on limitations and boundaries, and in the end there will be no discretion but only a complicated set of hard and fast rules of law manufactured entirely by the judiciary, although with the assistance of the reporters and commentators. Compare Mallet v. Mallet [1984] HCA 21; (1984) 156 CLR 605 at pp.608-609, per Gibbs CJ. In Antaios Compania Naviera S.A. v. Salen Rederierna A.B. (The Antaios) [1985] 1 AC 191 Lord Diplock, with whom the other Law Lords agreed, re-affirmed the guidelines given in The Nema, but he also added that a judge should not give reasons for granting or refusing leave to appeal from the arbitrator to the court, and with this addendum I would respectfully agree for reasons adumbrated above, although the addendum itself cannot be viewed as binding. I understand that it has been the general practice in Victoria not to give reasons for refusing leave to appeal, but if this is not the general practice then it ought to be: see e.g. Karenlee [1988] VicRp 64; [1988] VR 614 at p.620. It is, I think, the more usual practice of our Full Court itself not to give reasons for refusing leave to appeal to this court, and in the past it certainly used to be the more general practice of the High Court not to give reasons for refusing special leave to appeal to the High Court."

Of course there may be cases in which it is appropriate for the Court to give reasons for granting leave to appeal, for example where a Judge directs that the appeal be heard instanter and allowed. In such cases it is appropriate for the Judge to state his reasons for granting leave as well as those for allowing the appeal. See for example Beneys and Another v. Delafotis and Another (No. 1) (1996) 2 V.R. 695.

But that is not the situation in the present case.

I have considered the material placed before me in relation to the Department's appeal including the written submissions of counsel.

I am not persuaded that leave to appeal should be granted in respect of document 35. The appeal will be dismissed with costs to be taxed including reserved costs and paid by the Department.

Victorian Civil and Administrative Tribunals Act 1998

Court (Miscellaneous Civil Proceedings) Rules 1998

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