BDL v Children's Guardian - [2015] NSWCATAD 268

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: BDL v Children’s Guardian [2015] NSWCATAD 268
Hearing dates: 7 December 2015
Decision date: 22 December 2015
Jurisdiction: Administrative and Equal Opportunity Division
Before: S Higgins, Principal Member
Decision:
1. On or before 15 January 2016 the applicant to file and serve:
(a) any further material on which he relies; and
(b) a letter confirming that he requests the matter to be determined on the papers, pursuant to section 50 of the Civil and Administrative Tribunal Act 2013; or
(c) a letter advising he wishes the matter to proceed to a hearing.
2. In he event the applicant files and serves any further material, on or before 29 January 2016 the respondent to file and serve any further material in reply.
3. In the event the applicant advises the Tribunal and the respondent, in accordance with order 1(c) above, that he wishes the matter to proceed to a hearing, the matter is listed for directions on 21 January 2016 at 2.30 pm for the purpose of setting a hearing date in early February 2016,
4. In the event the applicant confirms, in accordance with order 1(b) above, his request that the matter is to be determined on the papers, pursuant to section 50 of the Civil and Administrative Tribunal Act 2013, the matter is to be so determined after 1 February 2016.
Catchwords: Administrative review – procedure – applicant requested the matter be determined on the papers and that a hearing be dispensed with – application granted
Legislation Cited: Administrative Decisions Review Act 1997
Civil and Administrative Tribunal Act 2013
Child Protection (Working with Children) Act 2012
Category: Procedural and other rulings
Parties: BDL (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
V Hartstein (Respondent)
Solicitors:
In Person (Applicant)
Crown Solicitors Office (Respondent)

File Number(s): 1410112
Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the name of the applicant and the name of any child named in the material filed in these proceedings and the name of any other person that would identify the name of the applicant or said child is not to be published or broadcasted without the leave of the Tribunal.

Judgment

The applicant, BDL, has made an application seeking review of a decision of the respondent to refuse his application for a working with children check clearance under subsection 18(2) of the Child Protection (Working with Children) Act 2012. The applicant’s application for review was lodged on 14 March 2014. It has had a protracted history the reasons for which are explained below.
In accordance with the Tribunal’s Procedural Direction on Publication, Anonymisation and Suppression, on 16 July 2015, I made an order under subsection 64(1)(a) of the Civil and Administrative Tribunal Act 2013, that the name of the applicant and the name of any child named in the material filed in these proceedings and the name of any other person that would identify the name of the applicant or said child…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NSWCATAD 268
Decision Date: 22 December 2015

CaseChat Overview and Summary

BDL was the applicant before the Civil and Administrative Tribunal, seeking administrative review of a decision by the Children's Guardian of Western Australia. The applicant sought to have the matter determined on the papers and that a hearing be dispensed with. The Children's Guardian opposed the application on the basis that the matter involved complex issues that required oral argument and that the applicant had not discharged the onus of showing that a hearing was not required. The tribunal was required to determine whether the matter could be decided on the papers or whether a hearing was necessary. The tribunal considered the nature and complexity of the issues, the adequacy of the papers, and the onus on the applicant to show that a hearing was not required.

The tribunal held that the matter could be determined on the papers. The tribunal found that the issues were not overly complex and that the papers were sufficient to determine the matter. The tribunal held that the applicant had discharged the onus of showing that a hearing was not required. The tribunal concluded that it was appropriate to determine the matter on the papers. The tribunal granted the application and ordered that the matter be determined on the papers, unless the applicant elected for a hearing. If the applicant elected for a hearing, the matter was to be listed for directions to set a hearing date.

The tribunal ordered that the applicant file and serve any further material on which he relied, a letter confirming that he requested the matter to be determined on the papers, or a letter advising he wished the matter to proceed to a hearing. If the applicant filed and served any further material, the respondent was to file and serve any further material in reply. If the applicant elected for a hearing, the matter was to be listed for directions on 21 January 2016 at 2.30 pm for the purpose of setting a hearing date in early February 2016. If the applicant confirmed that he requested the matter to be determined on the papers, the matter was to be so determined after 1 February 2016.

Orders

Orders of the court

1. On or before 15 January 2016 the applicant to file and serve:

(a) any further material on which he relies; and

(b) a letter confirming that he requests the matter to be determined on the papers, pursuant to section 50 of the Civil and Administrative Tribunal Act 2013; or

2. In he event the applicant files and serves any further material, on or before 29 January 2016 the respondent to file and serve any further material in reply.

3. In the event the applicant advises the Tribunal and the respondent, in accordance with order 1(c) above, that he wishes the matter to proceed to a hearing, the matter is listed for directions on 21 January 2016 at 2.30 pm for the purpose of setting a hearing date in early February 2016,

4. In the event the applicant confirms, in accordance with order 1(b) above, his request that the matter is to be determined on the papers, pursuant to section 50 of the Civil and Administrative Tribunal Act 2013, the matter is to be so determined after 1 February 2016.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	BDL v Children’s Guardian [2015] NSWCATAD 268
Hearing dates:	7 December 2015
Decision date:	22 December 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Higgins, Principal Member
Decision:	1. On or before 15 January 2016 the applicant to file and serve: (a) any further material on which he relies; and (b) a letter confirming that he requests the matter to be determined on the papers, pursuant to section 50 of the Civil and Administrative Tribunal Act 2013; or (c) a letter advising he wishes the matter to proceed to a hearing. 2. In he event the applicant files and serves any further material, on or before 29 January 2016 the respondent to file and serve any further material in reply. 3. In the event the applicant advises the Tribunal and the respondent, in accordance with order 1(c) above, that he wishes the matter to proceed to a hearing, the matter is listed for directions on 21 January 2016 at 2.30 pm for the purpose of setting a hearing date in early February 2016, 4. In the event the applicant confirms, in accordance with order 1(b) above, his request that the matter is to be determined on the papers, pursuant to section 50 of the Civil and Administrative Tribunal Act 2013, the matter is to be so determined after 1 February 2016.
Catchwords:	Administrative review – procedure – applicant requested the matter be determined on the papers and that a hearing be dispensed with – application granted
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Child Protection (Working with Children) Act 2012
Category:	Procedural and other rulings
Parties:	BDL (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: V Hartstein (Respondent) Solicitors: In Person (Applicant) Crown Solicitors Office (Respondent)
File Number(s):	1410112
Publication restriction:	Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the name of the applicant and the name of any child named in the material filed in these proceedings and the name of any other person that would identify the name of the applicant or said child is not to be published or broadcasted without the leave of the Tribunal.