It is an intriguing saga which is recounted in Board of Examiners v XY [2006] VSCA 190, involving the application for admission to practice by a woman with a criminal record and a history of mental illness. According to psychiatrists, by the time of an appeal to the Supreme Court, her mental illness was over. So the Court overturned the Board of Examiners’ original decision, though acknowledging it had been correct at the time. The Court of Appeal recounted the facts (but did not reproduce the intriguing fact noted by the trial judge that much of the self-harm inflicted by the woman occurred in the toilets of court buildings in the city):
“In March 2002, Ms XY, who was then aged approximately 30 years, applied to the Board for a Schedule 14 certificate and in support of the application filed material which relevantly disclosed that for a period prior to her application for admission, she had experienced certain mental problems and had been charged with a considerable number of criminal offences involving violence on her part.
The material is described in his Honour’s comprehensive reasons for judgment and it is not necessary to restate it here. But in order to appreciate the difficult situation that faced the Board in respect of that application I shall set out the gist of what it disclosed. Thus, the Board was told that Ms XY was sexually abused as a child and that, primarily as a result of this, she developed alcohol and substance abuse problems.
Nevertheless, she successfully completed school and commenced to study for degrees in Arts and Law. In 1992, after temporarily withdrawing from her studies, Ms XY overdosed on prescription medicines and, between July 1992 and July 1993, attempted self harm on numerous occasions. In August 1992, she was charged with a number of offences arising out of one of these incidents – namely, refusing to provide information to police, resisting arrest and assaulting protective officers and police – that were struck out because of her mental illness.
At this time, Ms XY was diagnosed with borderline personality disorder with impulsive disruptive behaviour and self-mutilation risk and spent some time in psychiatric institutions. Although her mental health improved in 1993, it deteriorated in the following year and she was involved in further offending conduct, including violent behaviour on her part that continued on and off between 1994 and 1998. Furthermore, her mental condition during this period was such that, on a number of occasions, she was admitted to psychiatric hospitals.
In order to indicate the seriousness of Ms XY’s conduct and her mental state, I mention by way of example that her behaviour included abusive telephone calls to police and others, threats to kill a police officer, threats to inflict serious injury, assaults, attempts to commit self harm, resisting arrest and criminal damage to property. During the relevant period, said his Honour, Ms XY drank heavily, up two to three litres of wine per day. Nevertheless, as his Honour pointed out, she ceased drinking in 1998, and in 2000, she completed her Bachelor of Laws Degree with third class Honours, ‘a remarkable achievement’, as the learned judge noted.
All this, as I have said, was disclosed by Ms XY to the Board. But she did not disclose four incidents that were plainly relevant to her application. In respect of two of the incidents his Honour accepted Ms XY’s explanation for non-disclosure and they can be put to one side. But the learned judge considered that the failure by her to disclose the other two incidents (‘the serious incidents’) raised ‘more serious issues’.
The first incident was the termination of her position as a volunteer at a community legal service due to her offensive attitude and conduct towards another volunteer (seemingly only because he was a policeman) that cumulated [sic.] in her saying to him ‘I hope they kill you. I hope they kill you before you retire. I hope they kill you’.
The second serious incident that Ms XY did not initially disclose to the Board occurred in March 2000 while she was staying at a meditation centre. It seems that, after consuming Serapax tablets, she used a knife to rip a mattress in her room. She also broke a mirror and wrote on the wardrobe that the other residents were impure. On the next day, when one of the residents tried to stop her from leaving, Ms XY told him that if he did not let her go she would stab herself with a pocket knife that she had taken out of her backpack. In the result, she was admitted to the Emergency Department of the local hospital. Ms XY was not charged in relation to these events and, later, paid $1,000 to compensate for the damage she had caused.”
In XY v Board of Examiners [2003] VSC 196, the woman applied unsuccessfully to Cummins J for an order that her appeal be heard in closed court in order not to endanger her physical safety, one of the grounds for closing the Supreme Court. Cummins J noted:
“I have paid close attention to the matters of safety identified by Ms XY, particularly in paragraph 2 of her affidavit of 7 March 2003.[2] She there sets forth her concerns as to a family member (paragraph (a)), another person (paragraph (b)) and a sect (paragraph (c)). Having reviewed that material, I am not satisfied that there is any material before the Court which would enliven the safety jurisdiction to act under s.18(1) pursuant to s.19(c). In so finding, I accept entirely the sincerity of Ms XY’s concerns as to her own situation. But I must judge the matter objectively and I do so. I am not satisfied objectively that there exists a danger to Ms XY’s safety (broadly defined). Accordingly I cannot move under that section.”
In XY v Board of Examiners [2005] VSC 250, Habersberger J allowed the woman’s appeal from the decision of the Board of Examiners which had itself conducted a hearing into the woman’s application for admission. He found that in the more than 2 years which had elapsed since the Board’s decision and the hearing, the woman’s improved mental health had allowed new psychiatric evidence sufficient to discharge the onus of establishing that the woman was a fit and proper person for admission.
The use of a pseudonym for the applicant to practice was noted by His Honour:
“2 Because of the extremely sensitive nature of the personal information concerning the appellant which is discussed in this judgment, I refer in my reasons to the appellant as Ms XY, which is the pseudonym adopted by the parties in this proceeding. For the same reasons I have also used pseudonyms for other persons mentioned in the judgment, as naming them would make it more likely that Ms XY would be identified. I have also been deliberately non-specific in referring to some of the factual matters. “
His Honour ordered the Board to pay the woman’s costs, but the Court of Appeal allowed an appeal against that order, a rare instance of an appeals court entertaining an appeal only in relation to costs and an equally rare instance of the exercise of a judicial discretion being overturned. Essentially, the Court of Appeal found that Habersberger J’s discretion was exercised by reference to a primary consideration of the woman’s straightened financial circumstances. The Court of Appeal held that the wealth of a litigant is an irrelevant consideration. The Court held that the following special features suggested the appropriateness of no order as to costs being made:
- the special relationship of the Board and the Supreme Court;
- the fact that it was in the public interest that the Board participate in the appeal, which was a hearing de novo, to assist the Court, since otherwise there would be no contradictor;
- the fact that the Board was not an adversary but merely assisted the Court by highlighting mattes which should be taken into account in the appeal;
- a line of authority which holds that costs should not be awarded against a statutory tribunal which makes an order in excess of its powers unless it can be demonstrated that it was guilty of serious misconduct or corruption or has acted perversely;
- the fact that the Board’s decision had been found to be correct at the time when it was made, and a line of authority that costs of appeals won on fresh evidence are payable by successful appellants.
The fact that the Board’s decision was correct was relevant in another way. The rationale of an award of costs is that it is just and reasonable that the party who has caused the other party to incur the costs of litigation should reimburse that party for the liability incurred: Latoudis v Casey (1990) 170 CLR 534. Since the Board’s original decision was correct, it could not be said that the Board had caused the woman to incur the costs of litigation.
The Court of Appeal overturned Habersberger J’s order that the Board pay the woman’s costs of the first appeal, with the result that the woman and the Board each bore their own costs.
