1. Mr McGee gave evidence that he did not attend the directions hearing on 22 September 2014 because he did not receive the hearing notice until the evening of the directions hearing. Mr McGee was cross-examined about this by Mr Panayi for the Secretary. Although there were some minor ambiguities in his evidence, it is likely that I would have accepted that Mr Mcgee did not receive the hearing notice and reinstated the application if that were the only matter to be determined.
2. However, the more challenging issue before me was whether to extend time for the making of the application.

1. I was not satisfied that it was appropriate to extend the time in the circumstances of this case.
2. When considering applications for an extension of time I am guided by the principles set out by Wilcox J in Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 3FCR 344.
3. I will briefly address each:

Can Mr McGee show an acceptable explanation for the delay?

1. I was not satisfied that he could.
2. Mr McGee gave evidence that when he received the Negative Notice, he "gave up." I accepted that his frank evidence in this respect was the most likely reason he did not apply for a review within the 28 day period. I concluded that it was only with the passage of time and his further rehabilitation that he regretted the decision to "give up" This, whilst perhaps understandable, is not a reasonable explanation for a delay of almost 12 months.
3. Mr McGee gave further evidence that he was not aware of his right to seek a review of the decision by this Tribunal. He said that he contacted the Working with Children Unit and was told that he could not reapply for an Assessment Notice for another 5 years. He was not told of his right of review until an associate advised him some months later.
4. The Working with Children Unit has no record of any such call being taken and submitted that Mr McGee would, if he had called, have been advised of his rights of review.
5. In any event, it is clear that the correspondence sent to Mr McGee by the Secretary at the time of the Negative Notice, clearly articulated the right of review. Whilst I accept that Mr McGee may have some difficulties with literacy, he has sensibly chosen to address those difficulties by having other people assist him as demonstrated in his comprehensive communications with the Working with Children Unit during the Assessment process.
6. I was satisfied that if Mr McGee had wanted to take the matter further during the permissible timeframes that he would have had the means by which to properly ascertain his rights. He was in his evidence and submissions before me clear, articulate and rational.
7. I considered it more probable than not that he chose not to do so, at that time.

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

1. There are no compelling reasons to extend time. Mr McGee's livelihood does not, for example depend on him having an Assessment Notice. He wishes to have an Assessment Notice to work in a volunteer capacity. Whilst this is highly commendable, it is not of itself sufficient to sway the balance in his favour

Has Mr McGee continued to make the Secretary aware that he contests the finality of the decision?

1. The Secretary was not made aware of Mr McGee's desire to review the decision until the application was filed with the Tribunal.

1. In some cases, there will be demonstrable prejudice to a respondent where there has been a delay. In matters of this kind, the prejudice is less apparent. Nevertheless I concur with the approach taken by Acting Deputy President Billings, as he then was, in LAH v Secretary to the Department of Justice [2010] VCAT 604 where he said:

...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.

Whether the delay may result, if MrMcGee were successful, in the unsettling of other people or of established practices

1. With the passage of time comes the potential for prospective applicants to improve their prospects of successfully reviewing before this Tribunal a decision of the Secretary to give an applicant a Negative Notice.
2. It would be an unfortunate development, essentially circumventing the legislative provisions, if, in order to enhance their prospects, prospective applicants sought to delay reviews anticipating that the Tribunal would routinely extend time.

1. Mr McGee received a Negative Notice because he had been found guilty of extremely serious acts of violence against his former partner. The relevant offence of "recklessly cause grievous bodily harm" was classified for the purposes of the Act as a Category 2 offence. It is unnecessary to retell the detail of the offences. Suffice to say the offences had all of the hallmarks of terrifying domestic violence - aggression, threats, extreme and repeated violence in the sanctity of the victim's home. It has been approximately 5 years since the commission of the offences.
2. Mr McGee also had a criminal history for drug related matters.
3. Violent propensities and working with children do not sit comfortably together.
4. Nevertheless, Mr McGee impressed. From a frightful background of being raised by heroin-addicted parents only too happy to pass on their addiction to Mr McGee, he has surfaced as an individual well on the way to putting his troubled past behind him. Over the last 4 1/2 years he has made dramatic changes to his life. He no longer uses drugs. He has participated in comprehensive programmes of rehabilitation and won the accolades of a number of support workers, social workers and his former psychiatrist. The general mood was succinctly summarised by one of his support workers as

...Jimmy demonstrated that recovery is possible ...a remarkable role model

1. Despite his progress, given the seriousness of Mr Mcgee's offending history, it is by no means a foregone conclusion that the Tribunal would, if the matter proceeded to hearing direct the Secretary to give an Assessment Notice to him.

1. There were no additional considerations of fairness tipping the balance in Mr McGee's favour. Section 25 of the Act imposes a clear 5-year time limit before an applicant may reapply for an Assessment Notice. There is no provision enabling an earlier application on the basis that an individual has made dramatic life-changes. To use the provisions of section 126 of the VCAT Act to extend time would essentially, in the circumstances of this case, be to enable Mr McGee to reapply 4 years before the statutory period. I did not consider that it would be appropriate to extend time under section 126 of the VCAT Act as a means of circumventing the statutory provisions.

1. I nevertheless commend Mr McGee for the progress he has made and note that Counsel for the Secretary was also keen to do so. I encourage Mr McGee to reapply for an Assessment Notice as soon as he is permitted to do so under the Act.
2. The application for an extension of time pursuant to section 126 of the VCAT Act is dismissed.