Victorian Civil and Administrative Tribunal Act 1998 - section 126 - discretion to extend time for commencement of proceeding - relevant considerations - application refused.

REPSONDENT: Secretary to the Department of Justice

MEDIA NEUTRAL CITATION: LAH v Secretary to the Department of Justice (Occupational and Business Regulation) [2010] VCAT 604

ORDER: The Tribunal dismisses the application under section 126 of the Victorian Civil and Administrative Tribunal Act 1998 for an extension of time in which to commence the proceeding.

For Respondent: Mr. P. Panayi of counsel instructed by the Victorian Government Solicitor

Hunter Valley Developments Pty. Ltd. v. Minister for Home Affairs and Environment (1984) 3 FCR 344

World Link Assets v. Kay [1999] VCAT 5

PJR v. Secretary to the Department of Justice (Occupational and Business Regulation) [2006] VCAT 2455

At a hearing before me on 30 March 2010 LAH applied for an extension of time in which to make an application to the Tribunal for review of a decision by a delegate of the Secretary to the Department of Justice. That decision was to issue a negative notice concerning LAH's application for a working with children certificate. I refused to extend the time and gave reasons orally. A request was made on behalf of the Secretary for reasons to be given in writing.

LAH is a man aged in his mid sixties. On 15 November 2007 he applied to the Secretary under the Working with Children Act 2005. The Secretary's delegate issued an interim negative notice on 31 January 2008. LAH did not provide any further material for the Secretary to consider and a negative notice was issued on 2 April 2008. A letter accompanying that notice informed LAH that he had 28 days in which to apply to the Tribunal for review of the Secretary's decision.

Approximately 18 months later, on 9 October 2009, LAH made his application to the Tribunal.

At a Directions Hearing held on 10 November 2009 the Tribunal made orders including that the application that LAH made orally that day for an extension of time be heard together with the application for review. LAH confirmed at the hearing before me that he still sought the extension. The Secretary opposed it.

The notices issued by the Secretary were based on LAH's criminal record. This referred to an offence committed in New South Wales in the mid-1970s being an indecent assault on a female person aged under 16 years. The sentence recorded by the District Court read: "Sentence deferred on entering recognisance. $500 good behaviour bond for 3 years. Accept supervision probation service. Also report to Victorian Parole & Probation Service (on return to Victoria) and accept any Psychiatric treatment required by them."

There was no dispute that the offence was committed when LAH was aged 30 and the victim, his stepdaughter, was eight years old. There was no dispute either that LAH later admitted to New South Wales police that he put his finger inside the victim's anus while she was lying in bed. He also told police that he had "interfered" with her on a number of previous occasions when the family was living in Victoria. LAH further told them that he had discussed his behaviour with a psychologist whom he was planning to see.

I heard sworn evidence by LAH and submissions made by him and submissions made on behalf of the Secretary.

The material parts of section 26 of the Working with Children Act - for present purposes - provide that a person who is refused an assessment notice on a category 1 application (which LAH's application was) may apply to the Tribunal for an assessment notice to be given to him or her: sub-section (1). The application must be made within 28 days after the day on which the decision of the Secretary is made: sub-section (5).

The Tribunal has power under the Victorian Civil and Administrative Tribunal Act 1998 to extend the time. The material parts of section 126 of that Act provide:

"(1) The Tribunal, on application by any person or on its own initiative, may extend any time limit fixed by or under an enabling enactment for the commencement of a proceeding.

... (3) The Tribunal may extend time or waive compliance under this section even if the time or period for compliance had expired before an application for extension or waiver was made.

(4) The Tribunal may not extend or abridge time or waive compliance if to do so would cause any prejudice or detriment to a party or potential party that cannot be remedied by an appropriate order for costs or damages.

relevant enactment means an enactment specified in the rules to be a relevant enactment for the purposes of this section."

1. The Working with Children Act is a "relevant enactment": see rule 4.20 of the Victorian Civil and Administrative Tribunal Rules 2008 and Schedule 1 to the Rules.

2. The general principles and numerous authorities are conveniently set out in Pizer's Annotated VCAT Act (3rd Edition) JNL Nominees Pty. Ltd., Melbourne, 2007 at paragraphs [4453] onwards.

3. It has been observed that the power under section 126 is a very wide one and that its purpose is to enable matters to be to be determined rather than avoided on their real and substantial merits and not on the basis of technical points or slip-ups.

4. In Hunter Valley Developments Pty. Ltd. v. Minister for Home Affairs and Environment (1984) 3 FCR 344 Wilcox J enumerated the key principles summarised in Pizer. I will put these in the form of questions and deal with them in turn.

Can the applicant show an acceptable explanation for the delay?

1. It is not an essential pre-condition for the applicant to show an acceptable explanation for the delay but it is to be expected that one will usually be given. The outcome is not dependent on length of delay: World Link Assets v. Kay [1999] VCAT 5.

2. LAH explained the delay in a letter to the Tribunal dated January of this year. He said that when he received the notice he was devastated and sought advice from his church leaders who advised him not to contest the matter. He followed the advice believing that to be in his best interests. He said however that over the many subsequent months he realised this was the wrong decision as it had affected so many areas of his life including voluntary work that he had been doing for many years. He was sorry for his crime and sought to leave it in the past and "make amends" by working for the benefit of children doing voluntary repair and maintenance work. He also wanted to clear his name.

3. LAH told me that it was in April 2008 that he first discussed this with a pastor in his church. The pastor said he wanted to think about it. Later that month the pastor said that he had consulted a solicitor. The pastor advised LAH not to pursue the matter. LAH had not intended to call the pastor as a witness. It was then about 12 months later, in April 2009, that a husband and wife, the leaders of another church he had joined encouraged him to make his application. The couple ran the voluntary charity for which LAH had been working. This involved him visiting "high rise" housing and working there. Another six months or thereabouts then elapsed before LAH made his application. The application was therefore made 18 months after the negative notice was issued and six months after LAH changed his mind about his application. LAH conceded, when questioned by Mr. Panayi, that there was nothing in the nature of chronic ill health (although he had had major surgery at one point) or absence overseas that had caused or contributed to the delay. When he finally made the application it took a week or so to do what was required.

4. In my view this was not an acceptable explanation for the delay. It is understandable that at first LAH might react to receiving the negative notice in the way that he did. However, a very considerable period elapsed before he changed his mind and a substantial further period then elapsed after he changed his mind.

Is it fair and equitable in the circumstances to extend time?

1. Questions of fairness and equity are more easily weighed in a proceeding between parties than in an application for review. (In this case the Secretary was not actually a party until joined by order of the Tribunal: see PJR v. Secretary to the Department of Justice (Occupational and Business Regulation) [2006] VCAT 2455).

2. The circumstances already considered lead me to the view that fairness and equity do not of themselves demand that the time be extended.

What has the applicant done? Has the applicant continued to make the decision-maker aware that he contests the finality of the decision as distinct from allowing the decision-maker to believe that the matter was finally concluded?

1. There was no evidence that LAH did anything from April 2008 until October 2009 to make the Secretary aware that he contested the negative notice.

1. There was no submission that there had been specific prejudice to the Secretary. The evidence relating to the offence itself was very old but at least records had been successfully obtained from the New South Wales Police in particular.

2. Rather, the point was made that the resources of the Department of Justice were finite. In my view prejudice to the Secretary was not the dominant consideration in the circumstances of this case, but I think that a decision-maker should generally be able to act with confidence that a matter is finalised once the statutory period for applying has passed, or at least within a reasonable time after that. In this sense the length of LAH's delay was material.

May the delay result, if the extension is granted, in the unsettling of other people or of established practices?

1. It was not submitted that this consideration was relevant.

Are there any and what considerations of fairness as between the applicant and other persons otherwise in a like position?

1. It was not submitted that this consideration was relevant.

What are the merits of the substantive application?

1. Before commenting on the merits, I mention that section 26 of the Working with Children Act provides that the Tribunal must not make an order for the giving of an assessment notice on a "category 1" application unless it is satisfied that giving the notice would not post an unjustifiable risk to the safety of children having regard to the following -

"(a) the nature and gravity of the offence and its relevance to child-related work; and

(b) the period of time since the applicant committed the offence; and

(c) whether a finding of guilt or a conviction was recorded for the offence or a charge for the offence is still pending; and

(d) the sentence imposed for the offence; and

(e) the ages of the applicant and of any victim at the time the applicant committed the offence; and

(f) whether or not the conduct that constituted the offence has been decriminalised since the applicant engaged in it; and

(g) the applicant's behaviour since he or she committed the offence; and

(h) the likelihood of future threat to a child caused by the applicant; and

(i) any information given by the applicant in, or in relation to, the application; and

(j) any other matter that VCAT considers relevant to the application."

When giving evidence LAH told me something of his life history. Other evidence included the police record of interview which showed that he was cooperative with police and gave frank responses to their questions. LAH told me that there had been changes within his life and, in effect, that he "knew" he posed no risk to children. He had made a contribution as a volunteer and wanted to continue to do that.

I accept that LAH was truthful when telling me about his state of mind. I also acknowledge that the offence was committed very many years ago. However, LAH acknowledged to police that his conduct was a further repeat of prior misconduct. It was very serious in nature. The victim was very young. The age disparity was very wide. There was of course no consent. The victim was effectively under LAH's care.

There was to be little evidence beyond what LAH would say about his behaviour since the offence was committed. He told me that he completed his parole and re-entered the workforce, but his only witnesses were to be the church leaders involved in the volunteer program that he wanted to continue with. Although in a written statement filed in the proceeding they said that they had known LAH for many years they also said that he had "never shown any real interest in children nor has he spent any extended time with them, as his love has always been to simply maintain our equipment". (Emphasis added).

LAH's former wife (being a person he married after his marriage to the victim's mother had ended) had written a reference that included the statement that there was "never any doubt" in her mind that LAH had "any issues with children". "He got on well very well with children and children were fond of him". She added that LAH told me however that she had decided that she was not able to attend the hearing and give evidence to the Tribunal.

This means that although LAH had been employed over the years, no employer and no family member or former family member was going to give evidence in support. The pastor who advised him in April 2008 was not going to give evidence. Only the couple whose statement said that LAH had not spent any extended time with children were to give evidence.

Given the nature and gravity of the offence and the evidence that LAH had participated in some treatment or rehabilitation with a psychiatrist or psychologist, the Tribunal would require evidence of high quality when assessing the likelihood of future threat to a child caused by him. There was not to be such evidence. LAH actually told me at one point that he had seen one or more psychologists in the past 12 months but that they had wondered why at his age he would "bother" seeking a working with children certificate. This was not explored in cross-examination. On the face of it this neither added to nor detracted from LAH's case. Still there was to be no expert evidence and little if any helpful non-expert evidence relevant to the question of risk.

Further on the question of merits, the Tribunal would have to consider the public interest. LAH did not suggest that his livelihood was at stake. There was nothing to indicate that the voluntary organisation would have serious difficulty in finding another person to do the kind of work that LAH had been doing or that LAH himself would have serious difficulty in doing volunteer work that did not involve child-related work.

1. Wilcox J observed in the Hunter Valley Developments Pty. Ltd. case, at page 348, that special circumstances need not be shown for an applicant to succeed in having time extended but that the court (or tribunal) will not grant the application unless positively satisfied that it is proper to do so.

2. It is obvious that time limits like the one imposed by section 26 of the Working with Children Act exist for a reason. The Tribunal has discretion to extend the time. In appropriate cases an extension may be granted so as to enable an application to be heard and determined on its real and substantial merits. Having regard to all the relevant considerations in this case, I am not satisfied that it is proper to grant the extension.