BCS v NSW Civil & Administrative Tribunal

[2015] NSWSC 126

Supreme Court

New South Wales

Medium Neutral Citation:

BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126

Hearing dates:

24 February 2015

Decision date:

27 February 2015

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

(1) Order, pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), that the order made by Registrar Kenna on 18 September 2014 that the applicant be referred to by the use of the pseudonym “BCS”, be continued.

(2) Pursuant to UCPR 50.3(1)(c), extend the time to commence the proceedings up to and including 1 July 2014.

(3) Quash the determination made by the first respondent on 16 April 2014 refusing and dismissing the applicant’s application for an enabling order under the Child Protection (Working with Children) Act 2012 (NSW).

(4) Order that the applicant’s application for an enabling order under the Child Protection (Working with Children) Act 2012 (NSW) be remitted to the New South Wales Civil and Administrative Tribunal, constituted other than by Senior Member Mullane, to be dealt with according to law.

(5) Unless any party seeks a different order by written application made in writing to my Associate within seven days, order the second respondent to pay the applicant’s costs of the proceedings.

Catchwords:

ADMINISTRATIVE LAW – judicial review – mandatory relevant considerations not taken into account by Tribunal in application for an enabling order to permit the applicant to work with children notwithstanding disqualifying offence – failure to comply with s 30 of the Child Protection (Working with Children Act) 2012 (NSW) – unjustified concentration on alleged failure to disclose leading to disregard of mandatory provision – making findings for which there was no evidence – matter to be remitted to be determined in accordance with law
STATUTORY INTERPRETATION – Child Protection (Working with Children) Act 2012 (NSW) s 28(5) – nature and relevance of disclosure obligation to considerations listed in s 30

Legislation Cited:

Crimes Act 1900 (NSW), s 61I
Children and Young Persons (Care and Protection) Act 1998 (NSW) s 178
Child Protection (Working with Children) Act 2012 (NSW), ss 3, 4, 6, 8(1), 13, 18(1), 28, 30(1)
Civil and Administrative Tribunal Act 2013 (NSW), 62, sch 2 cl 1(1)(e), sch 3 cl 17(1)(a)
Court Suppression and Non-Publication Orders Act 2010 (NSW) ss 7, 8
Supreme Court Act 1970 (NSW), s 69
Uniform Civil Procedure Rules 2005 (NSW), Pt 50

Cases Cited:

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24
Seltsam Pty Limited v Ghaleb [2005] NSWCA 208
Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43

Texts Cited:

Justice K Mason, “Unconscious Judicial Prejudice” (2001) 75 ALJ 676

Category:

Principal judgment

Parties:

BCS (Applicant)
NSW Civil and Administrative Tribunal (First Respondent)
The Children’s Guardian (Second Respondent)

Representation:

Counsel:
A Naylor/J Lawrence (Applicant)
G Moore (Second Respondent)

Solicitors:
Heenan & Company Lawyers (Applicant)
Crown Solicitor (Second Respondent)

File Number(s):

2014/194202

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Civil and Administrative Tribunal

Citation:

[2014] NSWCATAD81

Date of Decision:

16 April 2014

Before:

Hon G Mullane

File Number(s):

1340035

Judgment

Introduction

1. The applicant sought by amended summons (which was further amended by oral application on 24 February 2015) an order quashing the decision of the Honourable Senior Member Mullane made on 16 April 2014 refusing to grant to him an enabling order under the Child Protection (Working with Children) Act 2012 (NSW) (the Child Protection Act) (the Decision). The applicant invoked this Court’s jurisdiction on two bases: first, the jurisdiction conferred by the right to appeal on a question of law pursuant to cl 17(1)(a) of Schedule 3 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act); and secondly, the supervisory jurisdiction conferred by s 69 of the Supreme Court Act 1970 (NSW).

2. The first respondent, the NSW Civil and Administrative Tribunal (the Tribunal), filed a submitting appearance. The second respondent, the Children’s Guardian, was the only active respondent.

3. The parties have jointly applied for an order under s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW). I regard it as necessary in the public interest for an order to be made under s 7 of the Court Suppression and Non-Publication Orders Act on the ground provided for in s 8(1)(e): namely that it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice. I consider that the public interest in protecting the identity of a child who has made an allegation of sexual assault significantly outweighs the public interest in open justice in the present case. I regard the sacrifice to the principles of open justice occasioned by the use of a pseudonym in the present case to be relatively slight. A pseudonym has been used in these reasons instead of the applicant’s name so as not to identify an alleged victim. This preserves the situation that arose by reason of the Tribunal referring to the applicant by pseudonym.

4. The applicant challenged the Decision on the following two principal bases:

1. The Tribunal failed to take into account the matters which s 30(1) of the Child Protection Act required it to take into account; and

2. The Tribunal based the Decision on findings in respect of which there was no evidence or which were legally unreasonable.

5. In order to address the challenges to the Decision, it is necessary to set out the statutory scheme as well as the factual background to the Decision and the proceedings before the Tribunal

The statutory scheme

The legislation

6. Section 3 of the Child Protection Act described the objects of the Act as follows:

“The object of this Act is to protect children:

(a)   by not permitting certain persons to engage in child-related work, and

(b)   by requiring persons engaged in child-related work to have working with children check clearances.”

7. Section 4 of the Child Protection Act provided that:

“The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act.”

8. The Child Protection Act relevantly prohibits a worker from engaging in “child-related work” unless the worker holds a working with children check clearance (a Clearance) of a class applicable to the work: s 8(1). It is common ground that the applicant, who is a dentist, would be involved in “child-related work” within the meaning of s 6 of the Child Protection Act if he were to provide dental services to children (defined as persons under the age of 18 years: s 5(1) of the Child Protection Act) since this would involve both physical and face to face contact with children. Section 13 of the Child Protection Act makes provision for applications for Clearances to be made to the Children’s Guardian, which is a statutory office held pursuant to an appointment under s 178 of the Children and Young Persons (Care and Protection) Act 1998 (NSW): see the definition in s 5 of the Child Protection Act.

9. Section 18 of the Child Protection Act prohibits the Children’s Guardian from granting a Clearance to persons who have been convicted of certain offences if committed as adults. Such persons are referred to as “disqualified persons”: s 18(1). Schedule 2 relevantly specifies an offence under s 61I of the Crimes Act 1900 (NSW) (sexual intercourse without consent) as a disqualifying offence: cl 1(1)(e). Section 28 of the Child Protection Act provides that a disqualified person, who has been refused a Clearance because the person is disqualified, may apply to the Tribunal for an “enabling order” declaring that the person is not to be treated as a disqualified person for the purposes of the Child Protection Act in respect of an offence to be specified in the order.

10. An applicant must fully disclose to the Tribunal any matters relevant to the application: s 28(5) of the Child Protection Act. The Children’s Guardian is to be a party to any proceedings for an enabling order and may make submissions in opposition to or in support of the making of the order: s 28(4) of the Child Protection Act. In any such proceedings in the Tribunal it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children. If the Tribunal makes an enabling order, it may order the Children’s Guardian to grant the person a Clearance: s 28(6) of the Child Protection Act.

11. Section 30(1) of the Child Protection Act provides:

30 Determination of applications and other matters

(1) The Tribunal must consider the following in determining an application under this Part:

(a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar,

(b) the period of time since those offences or matters occurred and the conduct of the person since they occurred,

(c) the age of the person at the time the offences or matters occurred,

(d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim,

(e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person,

(f) whether the person knew, or could reasonably have known, that the victim was a child,

(g) the person’s present age,

(h) the seriousness of the person’s total criminal record and the conduct of the person since the offences occurred,

(i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition,

(j) any information given by the applicant in, or in relation to, the application,

(k) any other matters that the Children’s Guardian considers necessary.

12. Section 62 of the NCAT Act provides:

62 Tribunal to give notice of decision and provide written reasons on request

(1) The Tribunal (including when constituted as an Appeal Panel) is to ensure that each party to proceedings is given notice of any decision that it makes in the proceedings.

(2) Any party may, within 28 days of being given notice of a decision of the Tribunal, request the Tribunal to provide a written statement of reasons for its decision if a written statement of reasons has not already been provided to the party. The statement must be provided within 28 days after the request is made.

(3) A written statement of reasons for the purposes of this section must set out the following:

(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based,

(b) the Tribunal’s understanding of the applicable law,

(c) the reasoning processes that lead the Tribunal to the conclusions it made.

(4) Nothing in this section prevents the Tribunal from giving oral reasons or a written statement of reasons for a decision it makes even if it has not been requested to do so by a party.

The nature and relevance of the disclosure obligation to the determination of an application for an enabling order

13. Although the disclosure obligation is imposed on an applicant for an enabling order, the extent to which it is complied with is not expressly included within the list of mandatory relevant considerations in s 30(1) of the Child Protection Act. The terms of the Child Protection Act do not express what consequences, if any, are to flow when an applicant for an enabling order fails to comply with the obligation imposed by s 28(5). There is no express provision to the effect that where there has been an established failure to make full disclosure of relevant matters, the Tribunal is not obliged to consider the application or to have regard to the matters identified in s 30(1) of the Child Protection Act. No such provision can be implied.

14. Lack of full disclosure could fall for consideration within s 30(1)(j) of the Child Protection Act, which requires the Tribunal to consider “any information given by the applicant in, or in relation to, the application”. It might also fall for consideration by reason of 30(1)(k), but only if the Children’s Guardian thought it necessary.

15. If an applicant’s failure to comply with the obligation indicates a lack of insight, or dishonesty, the failure may be relevant to the question whether an enabling order ought be made because it is relevant to the assessment of risk and the paramount consideration of the operation of the Child Protection Act: namely, the safety, welfare and well-being of children and, in particular, protecting them from child abuse. However, if an applicant’s failure to disclose relevant matters arises from a lack of appreciation of their relevance or imperfect recollection, the failure may be immaterial to the question whether an enabling order ought be made and immaterial to the safety, welfare and well-being of children.

16. The disclosure called for is full disclosure of any matters relevant to the application. This will depend on the nature of the application which, in turn, in circumstances where the need for the enabling order arises by reason of a disqualifying offence, depends on the nature of the disqualifying offence and any associated criminal conduct or allegation of criminal conduct. Full disclosure in such a case would require an identification of circumstances of any offence of which the applicant was found guilty, together with the sentence imposed and a description of any other allegations made or charges laid. The evident purposes of the obligation imposed on the applicant to “fully disclose to the Tribunal any matters relevant to the application” is to enable the Children’s Guardian to investigate facts relevant to the factors listed in s 30(1) of the Child Protection Act (for the purposes, in part, of deciding whether to support or oppose the application) and to enable the Tribunal, at the hearing of the application, to consider these factors in a substantial way.

The background to the applicant’s application for an enabling order

17. On 5 March 2008 the applicant was convicted following a trial by jury of an offence against s 61I of the Crimes Act 1900 (NSW) in that between 14 and 30 April 2005 he had sexual intercourse with his then wife without her consent and knowing that she had not consented. For that count he was sentenced to a term of imprisonment for four years, commencing on 6 September 2008 and expiring on 5 September 2012 with a non-parole period of two years commencing on 6 September 2008 and expiring on 5 September 2010. He was convicted of other counts, for which he was also sentenced but none of the other counts was a disqualifying offence within the Child Protection Act. He was in custody from 6 June 2008.

18. By letter dated 22 December 2010, the applicant’s then solicitors wrote to the Dental Board of Australia to disclose the applicant’s criminal history as a result of the convictions entered on 5 March 2008. The letter set out the various charges, the counts in respect of which he was convicted and the underlying conduct alleged against him. The letter also disclosed charges which had been laid against him in 2002 in the following terms:

Prior to that time [the applicant] had no criminal record. He had been previously charged with two separate matters which he did not commit. On about 25 October 2002 [the applicant] was charged with one count of aggravated sexual assault, victim under authority and one count of assault with indecency (‘2002 charges’). One of those charges was later withdrawn by police, the other was defended and [the applicant] was acquitted after a District Court trial in about 2004.

19. On 30 July 2013 the applicant applied to the Children’s Guardian for a Clearance. As it was required to do by s 18 of the Child Protection Act, the Children’s Guardian refused the Clearance.

The applicant’s application for an enabling order

20. On 25 September 2013 the applicant applied to the Tribunal for an enabling order. He attached in support of his application the letter dated 22 December 2010 from his solicitors to the Dental Board referred to above.

21. As provided for by s 28(4) of the Child Protection Act, the Children’s Guardian was a party to the proceedings.

The documentary evidence before the Tribunal

22. The Children’s Guardian obtained material from the Department of Community Services (DOCS) which it provided to Dr Collins, the expert psychologist it qualified for the purposes of the proceedings in the Tribunal. The applicant relied on a report from Ms Grapsas, a clinical psychologist, who first saw him on 24 March 2008 in connection with the sentencing hearing following the trial referred to above and continued to see him weekly following his release in December 2010. The tender bundle for the proceedings in the Tribunal also included character references and the remarks on sentence by Knox DCJ. The remarks on sentence recorded his Honour’s findings that the offence against s 61I of the Crimes Act was “an isolated act” ([95]) and that the criminality of this offence was “low range” ([99]).

23. The applicant also relied on statements made by him on 11 November 2013 and 9 April 2014 in support of his application which were included in the tender bundle. In [11] of the second statement, the applicant referred specifically to [22] of the report of Dr Collins which read as follows:

“Family and Community Services’ file information: File information discusses a notification made in July 2005, which indicated that the children may have witnessed domestic violence perpetrated by [the applicant] against his then wife. In 2006, it was alleged that [the applicant] slept with both of his children in a bed when they visited him; and that the younger daughter complained of the father touching her anus with stick-like object, sucking her nipples and putting cream on her genitals to the point that it hurt. In 2008, it is alleged that [the applicant] followed his son into the toilet and watched him, despite the son requesting for him to leave. It is also said that he went into the bathroom when his daughter was showering (despite an undertaking that he not be alone with his children) and asked her questions until she cried. It does not appear that any action was taken as a result of these allegations.”

24. In [13] of his second statement, the applicant expressly denied the matters referred to in [22] of Dr Collins’ report. In [14] the applicant said:

“I deny any sexual or other improper conduct by me towards my children at any time.”

Oral evidence in the Tribunal

25. The applicant gave oral evidence at the hearing in the Tribunal. He was cross-examined about various allegations that had been made against him in the past, by patients in respect of conduct in 2001 and 2002 and by his daughter. It was not put to him by counsel for the Children’s Guardian that he had failed to disclose any information relating to these allegations to the Tribunal or that any such failure was dishonest or deliberate. The cross-examination involved putting to him further detail about these allegations (which the Children’s Guardian had obtained from various sources, including DOCS and the NSW Police, for the purposes of the proceedings) to obtain his response.

26. Dr Collins also gave oral evidence in the Tribunal. She was asked in examination-in-chief whether the specific facts of allegations made by patients had been disclosed to her by the applicant. She said:

“… I do recall it being discussed and I felt that [the applicant] was quite forthcoming in his discussion around the allegation.”

27. Dr Collins was also asked about the level of risk that the applicant would pose if he were permitted to treat children. She answered:

“A. . . . the risk in this particular case is relatively low. A moderate low rating is quite low, and it’s based on the fact that the moderate element of that is based on the static factors in [the applicant’s] case, and that’s based on his – the charges and the criminal history that he has; they cannot be changed. But his dynamic risk factors are what lower his risk.

Q.   And the charges obviously include the ones that haven’t been resulted in convictions?

A.   That’s correct.”

28. On 16 April 2014, at the conclusion of the hearing, following a short adjournment, the Tribunal dismissed the applicant’s application. The applicant requested reasons which were ultimately provided by the Tribunal on 23 June 2014 (the Reasons).

The Tribunal’s reasons

29. The Reasons form part of the record for the purposes of this Court’s jurisdiction under s 69(3) of the Supreme Court Act 1970 (NSW): s 69(4) of the Supreme Court Act. Therefore if the Reasons reveal error, there is an error on the face of the record and this Court’s jurisdiction to grant relief under s 69 of the Supreme Court Act is enlivened.

30. At [1]-[4] of the Reasons, the Tribunal set out the nature of the application and the reason why the applicant is a “disqualified person”. The Senior Member set out the relevant legislative provisions and referred to ss 4, 6, 8, 9, 11, 12, 13, 18 and Schedule 2 of the Child Protection Act. The Senior Member set out ss 28 and 30 in full. In the balance of the Reasons, which were headed “Non Disclosure”, the Tribunal made findings that the applicant had failed to disclose certain matters and set out its conclusion. Having regard to the challenges made to the Decision this part of the Reasons is set out in full below:

“17 Subsection 28(5) of the [Child Protection] Act requires that in an application for an enabling order the Applicant must “fully disclose to the Tribunal any matters relevant to the Applicant”.

18 The evidence established that in 2001 the Applicant was charged with a sexual assault on an adult female patient as a result of a complaint by the patient. His evidence in cross-examination was that the charge was later withdrawn. But the Applicant had not disclosed the allegation until his cross-examination and there was no evidence other than his evidence in cross-examination as to the detail of the complaint that was made.

19 In 2002 the Applicant was charged with sexual assault of a 20 year old female patient. He was later found not guilty by a jury. It is noted that the jury’s finding is not a finding of innocence but a finding that there was not proof beyond reasonable doubt. The Applicant did not disclose this matter until his cross-examination. He provided no evidence of the detail of the allegation made by the patient against him.

20 The applicant relied upon evidence of an expert, Ms Grapsas who has attended on BCS for more than 150 sessions of psychotherapy. While he did disclose to her the fact of being charged in respect of patient complaints, he did not disclose what the patients alleged he had done.

21 In addition, documents from the Department of Family & Community Services produced by the Children’s Guardian contain records of allegations of sexual assault by the Applicant on his daughter, D, at age 4 years. Subsequently, in Family Law proceedings he consented to orders that his time spent with his children be subject to adult supervision.

22 The Applicant had not disclosed the allegations made against him in respect of alleged sexual assaults by him on D.

23 The Applicant has not made available to the Tribunal the precise allegations made by the two patients who made complaints that lead [sic] to criminal charges against him. The Tribunal does not know precisely what the allegations were and it appears that the Applicant, if he has given any thought to it, has decided it was better not disclose those matters.

24 The Applicant has not given the Tribunal any detailed responses to the allegations of sexual assault on his daughter in the records of the Department of Family & Community Services. In a statement recently provided in his evidence, he merely said:

“I deny any sexual or other improper conduct by me towards my children at any time.”

25 He did not disclose or address the detail of the allegations made in the Department’s records.

26 The allegations made by the patients, the details of those allegations, and the details of the allegations made to the Department are relevant to this Application because the issue is what risk, the Applicant is to children. His detailed responses would be relevant too.

27 The Tribunal finds that the Applicant has not made disclosures to the Tribunal of all matters relevant to the Applicant. Indeed, given the non-disclosures already referred to, the Tribunal finds that it is more likely than not that there are other relevant matters that he has not disclosed.

28 The Tribunal therefore finds that the Applicant has not discharged the onus under ss. 28(7) [of the Child Protection Act]. He has not satisfied the Tribunal that an enabling order should be made.”

The applicant’s challenges to the Decision

31. The amended summons, which was filed on 26 September 2014, was amended further by oral application made by Mr Naylor on behalf of the applicant on the day of the hearing to add recourse to the applicant’s right of appeal to this Court pursuant to cl 17(1)(a) of Schedule 3 of the NCAT Act.

32. A summons commencing a statutory appeal must be filed within 28 days of the material date, being the date of the order the subject of the appeal: UCPR 50.3(1). The material date was 16 April 2014. The summons was filed on 1 July 2014. The Reasons were not provided until 23 June 2014 and the transcript of the hearing was not available until after the summons was filed. The Children’s Guardian does not oppose an extension of time under UCPR 50.3(1). It is, in my view, in the interests of justice to grant the extension.

33. The applicant challenges the Decision on the following bases:

1. the Tribunal failed to take into account matters that it was obliged to have regard to by s 30 of the Child Protection Act (ground 9); and

2. the Tribunal made findings of non-disclosure for which there was no evidence or which, in the alternative, were legally unreasonable (grounds 2, 3, 4, 5, 6, and 8).

34. Each of these matters raises a question of law within the meaning of cl 17(1)(a) of Schedule 3 of the NCAT Act. It is not necessary to address any difference between the jurisdiction conferred by the NCAT Act on a statutory appeal and this Court’s jurisdiction pursuant to s 69 of the Supreme Court Act.

Failure to take into account mandatory relevant considerations

35. Section 30(1) of the Child Protection Act required the Tribunal to take into account the matters listed in the subparagraphs to the section, with the exception of (f), which was not germane to the application for an enabling order since the victim of the disqualifying offence was an adult. Failure to take into account a matter that a decision-maker is bound, either expressly or by necessary implication, to take into account renders the exercise of the statutory discretion susceptible to challenge on the ground that it has not been exercised according to law: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 (Peko-Wallsend) at 39 per Mason J. A decision which has been made without regard to mandatory relevant considerations ought be set aside unless the factor to which no regard has been had is so insignificant that the failure to take it into account could not have materially affected the decision: Peko-Wallsend at 40 per Mason J.

36. As can be seen from the extract from the Reasons set out above, the sole factor considered by the Tribunal was the alleged failure on the part of the applicant to comply with his obligation under s 28(5) of the Child Protection Act to “fully disclose to the Tribunal any matters relevant to the application”.

37. However, it is not open to the Tribunal to disregard other mandatory relevant considerations listed in s 30(1) on the basis that it regards a single factor as of such significance that all others can be overlooked. Although s 30 of the Child Protection Act was set out in full in the Reasons, it was not complied with.

38. In WingfootAustralia Partners Pty Ltd v Kocak [2013] HCA 43 the High Court said of the reasons required of a medical panel giving an opinion pursuant to s 68(2) of the Accident Compensation Act 1985 (Vic) on a medical question referred to it:

“[55] . . . The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law in the way the Medical Panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion.”

39. The Reasons reveal that what the Tribunal did in the instant case was to confine its consideration to what the Senior Member apparently regarded as the applicant’s egregious non-compliance with the obligation to make full disclosure of relevant matters. They show that the Tribunal failed to have regard to the other matters in s 30(1) of the Child Protection Act which it was obliged to consider

40. It cannot be accepted that the matters not taken into account were so insignificant that a failure to take them into account could not have materially affected the Decision. Among the matters not considered by the Tribunal were: the views of the sentencing judge of the objective seriousness of the disqualifying offence (s 30(1)(a)); the length of time since the offence and the applicant’s conduct since its commission (s 30(1)(b)); the applicant’s age at the time of the commission of the offence (s 30(1)(c)); and the age of the victim (applicant’s wife) at the time of the offence (s 30(1)(d)); the difference in their ages and the relationship between them (s 30(1)(e)); the applicant’s present age (s 30(1)(g)); the extent of the applicant’s criminal record, which was confined to the matters for which he was sentenced by Knox DCJ (s 30(1)(h)); and the evidence of both experts that the applicant posed a low risk having regard to the nature and circumstances of his offending conduct and the associated allegations (which would appear to fall within s 30(1)(i) since the Children’s Guardian raised them).

41. Accordingly, the applicant has not had his application for an enabling order determined in accordance with law. Ground 9 has been made out. In these circumstances the appropriate relief is to quash the Decision and remit the applicant’s application for an enabling order to the Tribunal to be determined in accordance with law.

Findings of fact without evidence or legally unreasonable findings of fact

42. In deference to the detailed submissions of Mr Naylor on behalf of the applicant and Mr Moore on behalf of the Children’s Guardian, I shall address the remaining grounds although the Decision must, for the reasons given above, be set aside on the basis of Ground 9. My reasons ought not be taken to express findings as to the underlying facts since the extent of disclosure, is at least potentially, a relevant matter to be considered by the Tribunal to which the applicant’s application is remitted under s 30(1)(j) or (k) of the Child Protection Act for the reasons given above.

43. The applicant challenged each of the following findings that related to charges laid as a result of complaints by patients in or about 2001 or 2002:

1. that he did not disclose the allegation which led to the charge in 2001 that he had assaulted a patient (2001 Allegation) until he was cross-examined ([18] of the Reasons); and

2. that there was no evidence other than his evidence in cross-examination as to the detail of the complaint that was made (Detail of 2001 Allegation) ([18] of the Reasons).

44. Although there was an issue about whether both charges were laid in 2002 (as the applicant recalled it) or whether there was a charge in 2001 and another in 2002, this issue does not appear to be material to the alleged non-disclosure since it is common ground that there were two charges. The applicant disclosed both charges (one count of aggravated sexual assault and one count of assault with indecency) in the letter from his solicitors dated 22 December 2010, which was incorporated by reference into his application for an enabling order. He disclosed that the first charge of aggravated sexual assault was withdrawn and that the second was dismissed. In his statement dated 9 April 2014 he said as follows:

“[15] I refer to paragraph 19 of the report of Dr Collins. I was charged with one count of sexual assault on a patient and one charge of indecent assault on a different patient. The first allegation was withdrawn. I was found not guilty of the second allegation before a jury. Both of the complainants were adults.”

45. The Tribunal is obliged to have regard to any information the applicant has provided to it in relation to his application (s 30(1)(j) of the Child Protection Act). The meaning of “any” in this phrase ought, in my view, to be taken to mean “all”. Any alleged failure to disclose must be adjudged, if it is to be taken into account at all, by reference to all of the information that an applicant for an enabling order has provided to the Tribunal. Such information included the applicant’s witness statements and any other material which they incorporated by reference. The only matter referred to in the Reasons that was not disclosed by the applicant in the information he had provided to the Tribunal before he was cross-examined was that the victim was female.

46. Mr Naylor submitted, on behalf of the applicant, that these findings were no mere factual errors which would be immune from this Court’s intervention. He contended that the errors amounted to errors of law because the factual findings were made in the absence of evidence: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-356 per Mason CJ. In respect of the findings at [18] and [19] of the Reasons extracted above, I am satisfied that they are erroneous at law because there was no evidence to support them. It appears that the Tribunal was under a misapprehension as to the matters that the applicant had disclosed in the material which was in the tender bundle which was before the Tribunal.

47. The applicant challenged each of the following findings that related to the second charge laid as a result of a complaint by another patient in 2002:

1. that he did not disclose the allegation which led to the charge in 2002 that he had sexually assaulted a female patient (2002 Allegation) until he was cross-examined ([19] of the Reasons); and

2. that there was no evidence other than his evidence in cross-examination as to the detail of the complaint that was made (Detail of 2002 Allegation) ([19] of the Reasons).

48. When the applicant was cross-examined, certain particulars of the 2002 Allegation were put to him, including that he had asked a female patient to take her bra off, that he had touched her breast and that he had touched her in the groin area. He substantially accepted that this is what had been alleged against him, although he denied that it had occurred.

49. I consider that the finding that the applicant had failed to disclose the 2002 Allegation is in the same category as the findings relating to disclosure of the 2001 Allegation and the Detail of the 2001 Allegation in that there was no evidence to support it. The finding relating to the Detail of the 2002 Allegation is in a different category in that further details of the complaint, which the applicant had not previously disclosed to the Tribunal, were put to him in cross-examination. Whether they ought to have been disclosed and the relevance, if any, of his non-disclosure to his application for an enabling order does not fall for determination in the Court.

50. The applicant also challenged the following findings made by the Tribunal at [21]-[25] of the Reasons:

1. that he had not disclosed the allegations made against him in respect of alleged sexual assaults by him on his daughter ([22] of the Reasons);

2. that it appeared that the applicant, if he had given any thought to it, had decided that it was better not to disclose those matters ([23] of the Reasons);

3. that the applicant had not given the Tribunal any detailed response to the allegations of sexual assault against his daughter in that he had simply denied the allegations ([24] of the Reasons); and

4. that the applicant did not disclose or address the detail of the allegations made in the materials the Children’s Guardian obtained from DOCS and which were provided to Dr Collins ([25] of the Reasons).

51. I consider the findings in [22] and [25] of the Reasons fall into the same category as the other findings identified above for which there is no evidence. In [11] of his statement of 9 April 2014 the applicant referred to [22] of Dr Collins report which summarises the DOCS materials, including the allegations made against him in respect of his conduct towards his daughter. The finding in [23] of the Reasons was, as Mr Moore conceded, never put to the applicant in cross-examination and therefore the finding involved a denial of natural justice. Further, Mr Moore confirmed before me that it was no part of the case put by the Children’s Guardian to the Tribunal that a non-disclosure by the applicant had been material or deliberate or in order to conceal the truth from the Tribunal. The finding in [24] of the Reasons appears to have proceeded upon a misapprehension that a denial of an allegation cannot amount to a sufficient response.

The composition of the Tribunal to which the applicant’s application ought be remitted

52. The Children’s Guardian sought an order that, if the matter is remitted to the Tribunal, it be heard by a member other than Senior Member Mullane. The applicant adopted the submissions made by the Children’s Guardian and supported the application for such an order.

53. For the foregoing reasons, I consider that the Senior Member failed to undertake the statutory task required of him and made findings for which there was no evidence. The parties have identified the following risks that would ensue if the matter for remitted to Senior Member Mullane. First, the applicant might have grounds for an apprehension of bias and may feel that he would not obtain the fresh hearing to which I have found he is entitled. Secondly, there may be a risk or at least the appearance of risk of so-called compensatory bias: see Mason, “Unconscious Judicial Prejudice” (2001) 75 ALJ 676. Thirdly, there is a risk that the Senior Member might feel obliged to recuse himself if the matter were remitted to the Tribunal and allocated to him.

54. These matters, together with the fact that both parties seek such an order, are relevant to whether it is appropriate to make an order remitting the matter to a differently constituted Tribunal: Seltsam Pty Limited v Ghaleb [2005] NSWCA 208 at [12] per Mason P, Ipp JA agreeing at [141]; see also Basten JA at [239]. Although this Court’s power to make such an order ought be exercised with caution, the present case is, in my view, one in which such an order ought be made in the interests of justice.

Orders

55. For the foregoing reasons I make the following orders:

1. Order, pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), that the order made by Registrar Kenna on 18 September 2014 that the applicant be referred to by the use of the pseudonym “BCS”, be continued.

2. Pursuant to UCPR 50.3(1)(c), extend the time to commence the proceedings up to and including 1 July 2014.

3. Quash the determination made by the first respondent on 16 April 2014 refusing and dismissing the applicant’s application for an enabling order under the Child Protection (Working with Children) Act 2012 (NSW).

4. Order that the applicant’s application for an enabling order under the Child Protection (Working with Children) Act 2012 (NSW) be remitted to the New South Wales Civil and Administrative Tribunal, constituted other than by Senior Member Mullane, to be dealt with according to law.

1. Unless any party seeks a different order by written application made in writing to my Associate within seven days, order the second respondent to pay the applicant’s costs of the proceedings.

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Decision last updated: 27 February 2015