BJQ v Children's Guardian (No 2) - [2016] NSWCATAD 291

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: BJQ v Children's Guardian (No 2) [2016] NSWCATAD 291
Hearing dates: On the papers
Date of orders: 14 December 2016
Decision date: 14 December 2016
Jurisdiction: Administrative and Equal Opportunity Division
Before: M Anderson, Senior Member
M Bolt, General Member
Decision:
The section 64 of the Civil and Administrative Tribunal Act order made in proceedings known as in BJQ v Children’s Guardian [2016] NSWCATAD 99 is revoked.

Catchwords: Administrative Law- Non-publication order made pursuant to section 64 Civil and Administrative Tribunal Act 2013 (NSW) in earlier proceedings – whether circumstances require the variation or rescission of the non-publication order – legislative provisions restricting identification of the complainant not applicable upon her death subject to the public interest – principle of open justice and public interest – whether non-publication order desirable – prior order revoked.
Legislation Cited: Child Protection (Working with Children) Act 2012 (NSW)
Children and Young Persons (Care and Protection) Act 1998 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)
Court Suppression and Non-publication Orders Act 2010
Evidence Act 1995 (NSW)
Cases Cited: Avilion Group Pty Ltd v Commissioner of Police, NSW Police (GD) [2010] NSWADTAP 46
BJQ v Children’s Guardian [2016] NSWCATAD 99
Council of the New South Wales Bar Association v BRJ (No 3) [2015] NSWCATOD 159
Rinehart v Welker [2011] NSWCA 403
State of New South Wales (Justice Health) and anor v Dezfouli [2008] NSWADTAP 69
Texts Cited: Procedural Direction 9, NSW Civil and Administrative Tribunal
Category: Consequential orders (other than Costs)
Parties: BJQ (Applicant)
Children’s Guardian (Respondent)
Director of Public Prosecutions (Third party Applicant)
Representation:
Counsel:
Solicitors:

File Number(s): 1510351
Publication restriction: None

REASONS FOR DECISION

This concerns an application made by the Director of Public Prosecutions (“DPP”) through the Solicitor for Public Prosecution filed on 11 October 2016. The third party applicant, as the DPP is referred to in the application, seeks release of information and evidence received by the Tribunal in BJQ v Children’s Guardian [2016] NSWCATAD 99. The Tribunal made an order at paragraph [8] of that decision restricting publication in that matter under section 64 of the Civil and Administrative Tribunal Act 2013 (NSW). The order was in the following terms:

An order has been made under section 64 (1) Civil and Administrative Tribunal Act 2013 (NSW) restricting publication of information that will identify the applicant, any children, or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons without leave of the Tribunal.

The applicant BJQ and the Children’s Guardian were given a copy of the application by the DPP. This matter was listed by the Registrar for directions on 25 October 2016 before Deputy President Hennessy but no appearances were made by BJQ or the Children’s Guardian. The Children’s Guardian through the Crown Solicitor’s Office in correspondence stated that the Children’s Guardian did not wish to make any submissions in…

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: [2016] NSWCATAD 291
Decision Date: 14 December 2016

CaseChat Overview and Summary

The case of BJQ v Children's Guardian (No 2) involved a non-publication order made under section 64 of the Civil and Administrative Tribunal Act 2013 (NSW) in earlier proceedings. The non-publication order was initially made to protect the identity of a complainant in a case concerning a child. The complainant subsequently died, leading to an application for the variation or rescission of the non-publication order. The court was tasked with determining whether the circumstances justified altering the order in light of the complainant's death and balancing the principle of open justice with the public interest.

The primary legal issue was whether the legislative provisions restricting the identification of the complainant remained applicable after her death, and if so, whether the non-publication order was still desirable given the public interest. The court had to consider the principle of open justice, which supports the transparency of legal proceedings, against the public interest in protecting the identity of the deceased complainant. Additionally, the court needed to assess whether the circumstances warranted the revocation of the non-publication order.

In ruling on the matter, the court determined that the legislative provisions restricting identification no longer applied upon the complainant's death, subject to the public interest. The court found that the non-publication order was no longer desirable given the complainant's death and the public interest considerations. Consequently, the court revoked the section 64 order made in the earlier proceedings, aligning with the balance of the open justice principle and the public interest.

The court's final order was the revocation of the section 64 order made in the earlier proceedings, BJQ v Children’s Guardian [2016] NSWCATAD 99. This decision reflected the court's conclusion that the non-publication order was no longer necessary or appropriate given the complainant's death and the public interest in open justice.

Orders

Orders of the court

The section 64 of the Civil and Administrative Tribunal Act order made in proceedings known as in BJQ v Children’s Guardian [2016] NSWCATAD 99 is revoked.

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:	BJQ v Children's Guardian (No 2) [2016] NSWCATAD 291
Hearing dates:	On the papers
Date of orders:	14 December 2016
Decision date:	14 December 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Anderson, Senior Member M Bolt, General Member
Decision:	The section 64 of the Civil and Administrative Tribunal Act order made in proceedings known as in BJQ v Children’s Guardian [2016] NSWCATAD 99 is revoked.
Catchwords:	Administrative Law- Non-publication order made pursuant to section 64 Civil and Administrative Tribunal Act 2013 (NSW) in earlier proceedings – whether circumstances require the variation or rescission of the non-publication order – legislative provisions restricting identification of the complainant not applicable upon her death subject to the public interest – principle of open justice and public interest – whether non-publication order desirable – prior order revoked.
Legislation Cited:	Child Protection (Working with Children) Act 2012 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Court Suppression and Non-publication Orders Act 2010 Evidence Act 1995 (NSW)
Cases Cited:	Avilion Group Pty Ltd v Commissioner of Police, NSW Police (GD) [2010] NSWADTAP 46 BJQ v Children’s Guardian [2016] NSWCATAD 99 Council of the New South Wales Bar Association v BRJ (No 3) [2015] NSWCATOD 159 Rinehart v Welker [2011] NSWCA 403 State of New South Wales (Justice Health) and anor v Dezfouli [2008] NSWADTAP 69
Texts Cited:	Procedural Direction 9, NSW Civil and Administrative Tribunal
Category:	Consequential orders (other than Costs)
Parties:	BJQ (Applicant) Children’s Guardian (Respondent) Director of Public Prosecutions (Third party Applicant)
Representation:	Counsel: Solicitors:
File Number(s):	1510351
Publication restriction:	None