BKB v Children's Guardian

[2014] NSWCATAD 221

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

BKB v Children's Guardian [2014] NSWCATAD 221

Hearing dates:

22 October 2014

Decision date:

22 October 2014

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M W Anderson, Senior Member

Decision:

(1) The application for review of the decision of the Children's Guardian filed 9 July 2014 is dismissed pursuant to section 55(1)(c) of the NSW Civil and Administrative Tribunal Act 2013.

(2) It is also noted that the applicant has not prosecuted the matter with any due diligence.

Catchwords:

ADMINISTRATIVE LAW- Working with Children Check clearance sought by way of application under section 27 of the NSW Child Protection (Working with Children) Act 2012-no appearance by the applicant on the day scheduled for the hearing of the application- dismissal of proceedings under section 55 of the NSW Civil and Administrative Tribunal Act 2013.

Legislation Cited:

Child Protection (Working with Children) Act 2012
Civil and Administrative Tribunal Act 2013

Category:

Principal judgment

Parties:

BKB (Applicant)
Office of Children's Guardian (Respondent)

Representation:

Solicitors:
BKB ( Applicant in person)
Crown Solicitor's Office (Respondent)

File Number(s):

1410352

Publication restriction:

Pursuant to section 64(1), Civil and Administrative Tribunal Act 2013-restricition on publication of information that will identify the applicant, any victims, non-professional witnesses, or evidence given and received in the Tribunal or in relation to the proceedings which is likely to identify those persons.

reasons for decision

1. In this matter the application for review under section 27 of the NSW Child Protection (Working with Children) Act 2012 ("the Act") filed on 9 July 2014 by BKB was listed for hearing on 22 October 2014. Ex tempore reasons in summary form and orders were delivered at the time of the hearing and since then a request for written reasons has been made under section 62 of the NSW Civil and Administrative Tribunal Act 2013. These written reasons are provided pursuant to that request, based upon the brief oral reasons and comply with subsections 62(2) and 62(3) of the NSW Civil and Administrative Tribunal Act 2013.

1. The Children's Guardian refused a working with children check clearance and that decision was notified to the applicant by letter dated 30 June 2014 from the Office of the Children's Guardian, after the Children's Guardian conducted a risk assessment of the applicant.

1. The triggers for the risk assessment were referred to in the risk assessment conducted by the Office of the Children's Guardian, as being under the relevant part of Schedule 1 (namely clause 1(6)) of the Act, which relate to offences of violence against former partners of the applicant including serious offences of common assault "sufficient to indicate a pattern of behaviour that warrants investigation as to whether [the behaviour] may cause a risk to the safety of children": clause 1(6) of Schedule 1 of the Act.

1. The applicant also reportedly had some issues with alcohol and was a former member of the police force.

1. The evidence admitted at the hearing shows that the matter was initially adjourned and set down for hearing on 22 October 2014. The applicant was notified of that by letter dated 27 August from the Registry of the Tribunal advising him that the "application has been listed for hearing on Wednesday, 22 October 2014 at 10 am at Level 10, John Maddison Tower, 86 Goulburn Street Sydney New South Wales".

1. The Tribunal received into evidence, on the application to dismiss the proceedings, correspondence which was sent by the respondent to the applicant, most recently dated 20 October 2014 which indicated to the applicant in the event that he did not attend on 22 October 2014, the respondent intended to seek an order dismissing the proceedings on that day.

1. The applicant has so far not filed any material relevant to his application in the Tribunal, but has provided some information to the Office of Children's Guardian as part of the risk assessment undertaken by the Children's Guardian pursuant to sections 14 and 15 of the Child Protection (Working with Children) Act 2012 ("the Act").

1. Exhibit R1 which is the bundle of correspondence comprising the most recent letter of the respondent, also contains previous letters and email correspondence to the applicant from the respondent, and this material was received into evidence on the respondent's application to dismiss the application for review. This evidence supported the application because it showed consistent notice by the respondent to the applicant to the effect adverted to in the more recent correspondence.

1. The Tribunal is satisfied from a review of the evidence before it that the applicant was made aware of the hearing date, being 22 October 2014, as the day listed for hearing of his application for review of the decision of the Children's Guardian pursuant to section 27 of the Act. The correspondence advised the applicant that the respondent would seek to have the application dismissed if the applicant did not appear.

1. Pursuant to section 55 (1)(c) of the Civil and Administrative Tribunal Act 2013, the Tribunal may dismiss the proceedings at any stage of proceedings "if any of the following circumstances apply": one of those circumstances is if the applicant has failed to appear in the proceedings. Subsection 55 (2) of the same Act provides that the proceedings may be reinstated if the Tribunal considers that there is a reasonable explanation for that failure, and no doubt also that the application for the reinstatement should be taken in due course within a reasonable time and complies with relevant time restrictions.

1. The Tribunal adjourned briefly on 22 October 2014 to permit the Registry to attempt to contact the applicant.

1. The Tribunal was made aware that the applicant had been telephoned by the Registrar and a message was left on his voicemail to the effect that he should contact the Tribunal. This occurred during the short adjournment.

1. There was no response received to that voicemail message at the time the Tribunal was reconvened.

1. The Tribunal noted at 11:15 am on 22 October 2014 that there was no appearance and no response by the applicant in the matter which had been listed for hearing at 10 am on 22 October 2014.

1. In all of the circumstances, the Tribunal's legislatively mandated guiding principle and primary rationale is to conduct proceedings in a just, quick and expeditious manner: section 36(1) Civil and Administrative Tribunal Act 2013. Unless the applicant has some good reason not yet known to the Tribunal for explaining his failure to appear on his own application, despite it having been adjourned on a previous occasion to permit him to address the material produced by the Children's Guardian, then in all the circumstances it appears that the application to dismiss the proceedings is a reasonable one. The respondent has provided adequate notice of its intention and the applicant has not taken advantage of his opportunity to be heard. There is no denial of procedural fairness to the applicant in that situation. The Tribunal has a responsibility to hear matters expeditiously and it is otherwise just to grant the application to dismiss the proceedings.

1. Accordingly, in those circumstances, the Tribunal dismisses the proceedings and also notes that the applicant has not prosecuted his claim with any due diligence (see paragraph [7] of these reasons), but the provision which is primarily relied upon is section 55 (1) (c) of the Civil and Administrative Tribunal Act 2013.

1. The order of the Tribunal is therefore:

(1) The application for review of the decision of the Children's Guardian filed 9 July 2014 is dismissed pursuant to section 55(1)(c) of the NSW Civil and Administrative Tribunal Act 2013.

(2)   It is also noted that the applicant has not prosecuted the matter with any due diligence.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 12 December 2014