BKE v Office of the Children's Guardian

[2015] NSWSC 523

Supreme Court

New South Wales

Medium Neutral Citation:

BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523

Hearing dates:

17 April 2015

Date of orders:

11 May 2015

Decision date:

11 May 2015

Jurisdiction:

Common Law

Before:

Beech-Jones J

Decision:

(1) Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010, the name and address of the plaintiff and any child referred to in the evidence before the Supreme Court or the Civil and Administrative Tribunal and the name and address of any other person whose publication would identify their names and addresses not be published without the leave of the Court.

 

(2)   The plaintiff be referred to as "BKE".

 

(3) The order made by the NSW Civil and Administrative Tribunal on 31 October 2014 refusing the plaintiff's application for an enabling order under the Child Protection (Working with Children) Act 2012 be set aside.

 

(4)   The NSW Civil and Administrative Tribunal rehear the plaintiff's application according to law.

 (5)   There be no order as to costs.

Catchwords:

ADMINISTRATIVE APPEAL – adult persons residing with authorised carer must hold a working with children check clearance – plaintiff’s wife is carer for grandson – plaintiff disqualified from obtaining clearance from the Office of the Guardian due to convictions in 1968 and 1970 – applied to NCAT for enabling order and clearance – assessment of risk – application refused based on finding that event subject of charge laid in 2000 for which he was acquitted happened.

 

JUDICIAL REVIEW – appeal on a question of law – procedural fairness – finding that applicant committed offence for which he was acquitted – clear notice required – statutory requirement to consider information provided by applicant in relation to application for review – failure to consider applicant’s explanation of incident – review of fact finding by NCAT – standard to be applied – whether findings illogical or had no evidentiary support .

  HELD: NCAT decision set aside – matter to be re-heard before NCAT

Legislation Cited:

- Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)
- Administrative Appeals Tribunal Act 1975 (Cth)
- Child Protection (Prohibited Employment) Act 1998
- Child Protection (Working with Children) Act 2012 – s 10, s 18, s 20, s 28, s 30
- Children and Young Persons (Care and Protection) Act 1998 – s 137, s 178
- Civil and Administrative Tribunal Act 2013 – s 38, s 65
- Court Suppression and Non-publication Orders Act 2010 – s 7, s 10
- Crimes Act 1900 – s 61M(2)
- Migration Act 1958 (Cth)

Cases Cited:

- Annetts v McCann [1990] HCA 57; 170 CLR 596
- Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321
- BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126
- Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
- Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143; 131 FCR 28
- Collector of Customs v Pozzalanic Enterprises Pty Ltd [1993] FCA 456; 43 FCR 280
- Commission for Children and Young People v V [2002] NSWSC 949
- Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; 49 FCR 576
- Commissioner for Children and Young People v FZ [2011] NSWCA 111
- Commissioner for Children and Young People v IK & Anor [2005] NSWSC 1136
- Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; 199 CLR 135
- Italiano v Carbone & Ors [2005] NSWCA 177
- Jones & Anor v Ekermawi [2009] NSWCA 388
- Kioa v West [1985] HCA 81; 159 CLR 550
- Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390
- Lo v Chief Commissioner of State Revenue [2013] NSWCA 180; 85 NSWLR 86
- M v M [1988] HCA 68; 166 CLR 69
- Mahon v Air New Zealand Ltd [1984] AC 808
- Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24
- Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594
- Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259
- Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59
- Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham [2000] HCA 1; 168 ALR 407
- Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611
- Minister for Immigration and Multicultural Affairs, Re; ex parte Lam [2003] HCA 6; 214 CLR 1
- Minister for Immigration and Multicultural Affairs, Re; ex parte Miah [2001] HCA 22; 206 CLR 57
- Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323
- Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12; 78 ALJR 992
- Osland v Secretary to the Department of Justice (No 2) [2010] HCA 24; 241 CLR 320
- Parker v Comptroller-General of Customs [2009] HCA 7
- Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; 244 CLR 144
- R v Hunt; ex parte Sean Investments Pty Ltd (1979) 180 CLR 322
- Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; 207 CLR 72
- R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30; 50 CLR 228
- SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; 228 CLR 294
- Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286
- SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152
- Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; 46 NSWLR 55
- Victims Compensation Fund Corporation v Nguyen [2001] NSWCA 264; 52 NSWLR 213

Category:

Principal judgment

Parties:

BKE – Plaintiff
Office of Children’s Guardian – First Defendant
NSW Civil and Administrative Tribunal – Second Defendant

Representation:

Counsel:
Ms L. Andelman – Plaintiff
Ms P. Lowson – First Defendant
Submitting appearance filed 19.12.14 – Second Defendant

  Solicitors:
Legal Aid NSW – Plaintiff
Crown Solicitor for NSW – First Defendant
Crown Solicitor – Second Defendant

File Number(s):

2014/351035

Publication restriction:

See orders [1] and [2] in [130].

Judgment

1. The plaintiff is a sixty-four year old man whose health is failing. His wife is the “authorised carer” of their sixteen year old grandson within the meaning of s 137 of the Children and Young Persons (Care and Protection) Act 1998 (the “CYPCP Act”).

2. Subsection 10(1) of the Child Protection (Working with Children) Act 2012 (the “Working with Children Act”) requires the plaintiff to hold a “Working with Children Check Clearance” to allow him to reside at his home with his wife and their grandson (a “clearance”). However, by reason of a conviction for the offence of buggery in 1968, which was committed when he was seventeen years old, and a conviction for an offence of carnally knowing a girl under the age of sixteen in 1970, which was committed when he was nineteen, the plaintiff is a “disqualified person” under the Working with Children Act (the “1968 conviction” and the “1970 conviction”). As a consequence he is precluded from obtaining a clearance from the defendant, the Children’s Guardian, appointed under s 178 of the CYPCP Act (the “Guardian”).

3. Instead, the plaintiff’s only option was to apply under s 28 of the Working with Children Act to the NSW Civil and Administrative Tribunal (“NCAT”) for an “enabling order” and a clearance. He applied but on 31 October 2014 NCAT refused his application. It did so, not because of any concerns about the 1968 and 1970 convictions, but because of concerns arising out of the events that gave rise to a charge of indecent assault against a different grandson (the “eldest grandson”) which was dismissed in 2000 (the “2000 incident”).

4. As I will explain, the Working with Children Act does not allow for a calibrated assessment of the current risk posed by the plaintiff to his grandson. Thus the legislation does not provide any means of enabling the plaintiff to live with his wife and assist her in raising their grandson by putting in place measures to mitigate any risk that he may pose. This is a policy choice made by Parliament which both NCAT and this Court must respect. Instead, the sole question for NCAT was whether the plaintiff proved that he did not pose a risk to the safety of children (s 28(7)). NCAT found that the plaintiff did not discharge that onus.

5. The even narrower question for this Court is not whether NCAT’s decision was right or wrong, but whether its decision is affected by an error of law (see [35]). For the reasons that follow I conclude that it was. In particular, NCAT made a finding to the effect that the plaintiff was guilty of the charge which was dismissed in 2000 when he was not given any notice that a finding to that effect would be made. Further, NCAT failed to consider the plaintiff’s explanation for the 2000 incident when it was required to do so by s 30(1)(j) of the Working with Children Act. There were a number of other grounds of challenge which I reject. Nevertheless, NCAT’s decision will be set aside and the matter will need to be re-heard before NCAT.

6. To explain these conclusions, it is necessary to outline the statutory scheme and NCAT’s decision in some detail. However, it is first necessary to note that NCAT made an order under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (the “CAT Act”) prohibiting the publication or broadcasting of the name of the plaintiff and any child referred to in the evidence before it, and the name of any other person whose publication would identify the name of the plaintiff or a child referred to in the evidence, without the leave of that tribunal.

7. At the hearing of these proceedings I made an interim order under s 10 of the Court Suppression and Non-publication Orders Act 2010 in similar terms. I will make a final order to that effect under s 7 as well as an order that the plaintiff be referred to as “BKE”. As is already evident, any proper discussion of the matters in issue in this proceeding requires a consideration of the circumstances of not just the plaintiff but also his grandchildren, one of whom was alleged to be the victim of an indecent assault. The protection of the identity of persons who are alleged to be victims of such conduct is clearly a matter in the public interest. This concern outweighs the public interest in “open justice” to the extent that that is served by their being identified (s 8(1)(e); see BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126 at [3] per Adamson J).

The Child Protection (Working with Children) Act 2012

8. Section 4 of the Working with Children Act provides 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”.

9. Division 2 of Part 2 imposes mandatory requirements for persons undertaking so-called “child-related work”, namely that the relevant worker hold a clearance “of a class applicable to the work” or that there is at least a “current application” outstanding from the worker before the Guardian for the relevant clearance (s 8(1)). Section 9 imposes obligations on employers of workers who undertake child-related work.

10. Division 3 of Part 2 identifies other persons who must obtain a clearance. It includes s 10(1), the relevant effect of which has been described above (at [2]).

11. Part 3 of the Working with Children Act deals with the granting and refusal of clearances. Section 12 specifies the class of clearances which authorises workers to engage in paid and unpaid child-related work, namely volunteers and “non-volunteers”.

12. Division 3 of Part 3 deals with the risk assessment of applicants for clearance and persons who hold such clearances. Section 14 provides that a person is subject to an “assessment requirement” if any of the matters specified in Schedule 1 apply to that person. Schedule 1 lists a number of assessment requirement triggers, which include that proceedings having “been commenced” against the person for various offences or their having been the subject of a “finding by a reporting body” that they had engaged in a relevant form of misconduct. Section 15 specifies the matters the Guardian may consider in undertaking a risk assessment. They are similar to the matters identified in s 30 which are listed below (at [20]). Section 17 empowers the Guardian to impose a so-called “interim bar” on a person engaging in child related work pending, for example, the outcome of proceedings against them.

13. Division 4 of Part 3 deals with the determination of applications for clearances. It includes s 18 which is of relevance to the plaintiff. It provides:

“18 Determination of applications for clearances

(1)   The Children’s Guardian must not grant a working with children check clearance to the following persons (disqualified persons):

(a)   a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult,

(b)   a person against whom proceedings for any such offence have been commenced, if the offence was committed as an adult, pending determination of the proceedings for the offence.

(2)   The Children’s Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children’s Guardian is satisfied that the person poses a risk to the safety of children.

(3)   The Children’s Guardian must grant a clearance to a person if it is satisfied that the person is not a disqualified person and the person is not subject to a risk assessment under Division 3.”

14. Schedule 2 lists a series of disqualifying offences. As is to be expected they generally concern offences against children or of a sexual nature or both. Relevantly for the plaintiff they include his conviction for carnally knowing a girl under the age of 16 under former s 71 of the Crimes Act 1900 and buggery under former s 79 of the Crimes Act 1900 ((Schedule 1, clause 1(1)(i) and 1(1)(j)).

15. Section 19 provides that the Guardian must give notice of a proposed refusal of an application. Section 20 deals with notice of the final decision. In light of some of the contentions of the plaintiff, it should be set out in full. It provides:

“20 Notice of final decision granting or refusing clearance

(1)   The Children’s Guardian must notify the applicant in writing of the Children’s Guardian’s decision to grant or refuse to grant a working with children check clearance.

(2)   Notice of a decision to grant a clearance must include the working with children check number.

(3)   Notice of a decision not to grant a clearance must set out the reasons for the refusal and the right to seek a review under Part 4.

(4)   The Children’s Guardian must notify the employer or proposed employer of an applicant in writing of the refusal of an application for a clearance, if the employer or proposed employer is known to the Children’s Guardian.”

16. Section 21(1) imposes a five year embargo upon the making of a further application for a clearance, unless there is some relevant change of circumstance as specified in s 21(2).

17. Division 5 of Part 3 deals with the duration and termination of clearances. Section 22 provides that the clearance ceases to have effect five years after the date it is granted, unless it is sooner cancelled or surrendered.

18. Part 4 of the Working with Children Act deals with reviews and appeals. Section 26 precludes any person from making an application for review or appeal if they have been convicted of the murder of a child, or if the decision relates to the fact that they have been charged with an offence and the proceedings relating to that offence have not been finally determined. Section 27 enables an application for review by persons who have had their application for children check clearances refused, or their clearance cancelled, or by a person who is subject to an interim bar.

19. Section 28 concerns disqualified and ineligible persons. It provides:

“28 Orders relating to disqualified and ineligible persons

(1)   The Tribunal may, on the application of a disqualified person, make an order declaring that the person is not to be treated as a disqualified person for the purposes of this Act in respect of an offence specified in the order (an enabling order). Any such order has effect according to its tenor.

(2)   The Tribunal may, on the application of a person who is not eligible to apply for a clearance because the person has been previously refused a clearance, make an order declaring that the person is to be treated as a person who is eligible to apply for a clearance (an enabling order). Any such order has effect according to its tenor.

(3)   A disqualified person may make an application under this section only if:

(a)   the person has been refused a working with children check clearance, or

(b)   the person’s clearance has been cancelled,

because the person is a disqualified person.

(4)   The Children’s Guardian is to be a party to any proceedings for an order under this section and may make submissions in opposition to or support of the making of the order.

(5)   An applicant must fully disclose to the Tribunal any matters relevant to the application.

(6)   If the Tribunal makes an enabling order, the Tribunal may order the Children’s Guardian to revoke an interim bar or to grant the person a clearance.

(7)   In any proceedings where an enabling order is sought, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children.

(8)   An enabling order may not be made subject to conditions.”

20. Section 30 prescribes the matters that NCAT must consider in determining any application under Part 4, including under s 27 or s 28. It 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.

(2) On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Children’s Guardian under this Act relating to the applicant pending the determination of the matter.

21. Six matters should be noted about these provisions.

22. First, s 28 confers two relevant powers on NCAT, namely a power to make an “enabling order” under s 28(1) and a power to order the Guardian to grant a person clearance under s 28(6). The effect of making an “enabling order” is to lift the bar upon the grant of a clearance by the Guardian that is imposed by s 18. In making an enabling order NCAT is required to identify the relevant offence specified in Schedule 2 to which it applies.

23. The structure of s 28 contemplates that the making of an enabling order and the granting of a clearance certificate are separate steps. However it seems that, in most cases, if NCAT makes an enabling order it proceeds to grant the person a clearance. Nevertheless, the making of an enabling order and the grant of a clearance can have different effects. For example, NCAT could, in a particular case, make an enabling order declaring that a person is not to be treated as a disqualified person in respect of an offence for, say, an unlimited period. In the same case NCAT may grant a person a clearance which by force of s 21 has an operation of five years. In those circumstances, upon the person’s application for a renewal of their clearance, the enabling order will have the effect that the applicant “is not to be treated as a disqualified person” in respect of that offence (s 28(1)). If that is their only disqualifying offence then their application will be treated by the Guardian in accordance with Division 3 of Part 3 and the disqualifying offence will operate as an “assessment requirement trigger” (Schedule 1, clause 1(b)).

21. Second, at various points in her submissions, Counsel for the plaintiff contended that, in considering whether to exercise the power conferred by s 28(1), NCAT was limited to only considering the relevant offence notified by the Guardian under s 20 as the basis for concluding that he was a disqualified person. This contention is inconsistent with s 30(1). An application for an enabling order is clearly “an application under this Part”. The balance of s 30(1) contemplates that conduct beyond that involved in the disqualifying offence(s) will be considered. For example s 30(1)(b) refers to “the conduct of the person since [the offences] occurred”, s 30(1)(h) refers to the seriousness of that conduct and s 30(1)(i) refers to the likelihood of a repetition by the person of that conduct.

22. Third, s 28 is opaque as to the test to be applied in determining whether to make an enabling order and order the Guardian to issue a clearance. Subsection 28(7) creates a presumption but it does not expressly specify the consequences of it being rebutted. Both before NCAT and in this Court the parties accepted that the standard referred to in s 28(7), namely whether the applicant poses a risk to the safety of “children”, represented a threshold which persons such as the plaintiff must meet to obtain an enabling order and a clearance certificate. They also accepted that, if it was met, then the order and clearance would be granted. This is consistent with s 18(2) of the Working With Children Act which imposes an obligation to that effect upon the Guardian following their undertaking of a risk assessment.

23. Further, the parties also accepted that the concept of a “risk to the safety of children” in s 28(7) invoked the following explanation given by Young CJ in Eq in Commission for Children and Young People v V [2002] NSWSC 949 at [42] (“V”) in relation to the word “risk” as it appeared in the former Child Protection (Prohibited Employment) Act 1998:

“What one is looking for is whether, in all of the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on children. One, however, must link the word ‘risk’ with the words that follow, namely, ‘to the safety of the children’.”

27. This explains the observation at the commencement of this judgment, namely that the structure of the Working with Children Act is that the assessment of persons such as the plaintiff, who seek a clearance so that they can continue to reside in their own home with an authorised carer and a particular child, is uncalibrated. There is no relevant assessment of the risk that they may pose to that child or other children who they are likely to come into contact with at that residence, or any consideration of measures that might be taken to mitigate that risk. Instead, they are subject to the full gamut of assessment which is applicable to persons who seek work in a child-related area.

28. Fourth, as noted, the effect of s 28(7) is that applicants must displace a presumption that they pose a risk to the safety of children. In The Commissioner for Children and Young People v IK [2005] NSWSC 1136 at [83] to [84] Cooper AJ stated as follows in relation to the decision being reviewed in that case:

“It should also be noted that in paragraph 6 of the judgment the Tribunal clearly and correctly stated that the Applicant carried the onus on the Briginshaw standard to establish that he is not a risk to children.

This does not mean that in respect of each individual piece of evidence considered by the Tribunal it has to be satisfied to that extent. What it does mean is that at the end of the deliberations after having considered the totality of the evidence the Applicant has satisfied the Tribunal to the appropriate standard that he is not a risk to children.”

29. In Commissioner for Children and Young People v FZ [2011] NSWCA 111, Young JA (with whom Hodgson JA and Handley AJA agreed) expressed some concern about the reference to Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 (“Briginshaw”) in the above passage from IK (at [68]). I share his Honour’s misgivings. Briginshaw warns about the use of “inexact proofs” in the context of making serious findings of fact (at p 362 per Dixon J). It is difficult to envisage how it applies to a party seeking to disprove a negative assessment of the risk they pose to children in the future. Further, the principles in Biginshaw were enunciated in the context of civil proceedings in a court, not administrative review proceedings in a body that is not required to apply the rules of evidence (CAT Act, s 38(2); see [63]). It is not necessary to decide whether a failure by NCAT to have regard to Briginshaw’s admonitions might give rise to an appeal on a “question of law”. It suffices to state that NCAT would be well advised to have regard to them if it was considering making a positive finding that an applicant sexually abused a child in circumstances where they were not convicted of doing so (see R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30; 50 CLR 228 at p 256 per Evatt J).

30. Fifth, significant guidance as to the approach to be adopted in such cases can be derived from the High Court’s decision in M v M [1988] HCA 68; 166 CLR 69 (“M v M”). In M v M the Family Court found that it was not satisfied that a father had abused a child but was also not satisfied that the father had not abused the child. Instead the Family Court found “that there was a possibility that the child had been sexually abused by the [father] and that in the interests of the child [the Court] should eliminate the risk of such abuse by denying access” (M v M at p 70).

31. In M v M the High Court accepted that a positive finding that an allegation of sexual abuse is true should not be made “unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw” (M v M at p 76). The Court also stated (at p 77 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ):

“It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.

No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.

In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.”

32. The Court held that the relevant test was that access to a child by a parent will be denied if there exists “an unacceptable risk that the child would be exposed to sexual abuse if the husband were awarded custody or access” (M v M at p 78).

33. The above passage from M v M contemplates a court finding that a risk of abuse exists but that the possibility of it materialising can be mitigated by measures such as supervised access, with the result that the risk is not unacceptable and the parent is not denied access. As I have observed no such mechanism is proffered by the Working with Children Act. It is not concerned with “unacceptable risks” but “real and appreciable” risks (V supra). Further, in cases such as this the onus is upon the plaintiff. However subject to those two matters and the caveat about the applicability of Briginshaw noted in [29], the reasoning in M v M is applicable to fact finding and the process of risk assessment that NCAT undertakes. Thus in such cases it may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven.

34. Sixth it is necessary to note the judicial review context in which these matters arise. The effect of s 17(1)(a) of Schedule 3 of the Civil and Administrative Tribunal Act 2013 (the “CAT Act”) is that the plaintiff has no right of internal appeal within NCAT, but does have a direct right of appeal to this Court “on a question of law” against NCAT’s decision.

35. Provisions conferring appeals on a “question of law” are said to generally be “concerned with the invocation of judicial power to examine for legal error what has been done in an administrative tribunal” (Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; 207 CLR 72 at [15]; Osland v Secretary to the Department of Justice (No 2) [2010] HCA 24; 241 CLR 320 at [71]). In Lo v Chief Commissioner of State Revenue [2013] NSWCA 180; 85 NSWLR 86 (“Lo”) at [10] and [49] to [50] Basten JA and Macfarlan JA respectively treated an error of law as synonymous with a matter that can be raised in an appeal on a question of law. Beazley P agreed with both of their Honours (at [1]). This appears to be the logical consequence of the discussion in Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 at [89] to [91] (per Hayne, Heydon, Crennan and Kiefell JJ).

The Plaintiff’s application for a clearance and review

36. On a date not specified in the evidence the plaintiff applied to the Guardian for a clearance. On 26 June 2014 the Guardian advised him that his application was refused. The Guardian’s letter which constituted notice under s 20 of the Working with Children Act advised him that he was a disqualified person by reason of the 1970 conviction. On 11 July 2014 he applied for review by NCAT. He sought a stay of the Guardian’s decision pending the hearing of the application for review. The application was refused.

37. At the hearing of these proceedings Counsel for the Guardian contended that one matter raised at the hearing of the stay application was the circumstances surrounding the 2000 incident. Following the hearing in this Court the Guardian filed an affidavit attaching a transcript of the stay application. The plaintiff’s Counsel was asked to indicate if she had any objection to it being treated as read. The plaintiff’s Counsel stated she had no objection to that course. Accordingly it has been treated as read. The transcript of the stay application confirms the correctness of the contention of Counsel for the Guardian.

38. On or about 28 July 2014 the Guardian served a substantial amount of documentary material, including copies of the plaintiff’s criminal record and various statements concerning the 2000 incident. The plaintiff served a report from a psychologist and an affidavit from the eldest grandson concerning the 2000 incident.

39. The hearing before NCAT commenced on 26 August 2014. At the commencement of the hearing, NCAT was advised that the plaintiff did not propose to give evidence. After some discussion he was called. Those parts of his evidence concerning the 2000 incident are set out below. The eldest grandson’s affidavit was read but he was not cross-examined. The plaintiff’s psychologist was cross-examined.

40. No transcript was provided to this Court of the submissions before NCAT. At the point when the evidence concluded the transcript only states “Counsel addressed”. However the transcript records an ensuing discussion concerning the possibility of the plaintiff calling his wife to give evidence. It is not entirely clear what issue this concerned, however two potential topics for her evidence were mentioned. The first was whether the plaintiff’s wife could provide evidence supporting the assumptions of fact made by the plaintiff’s psychologist. The second was whether she could recall what happened at the Local Court when the charge of indecent assault arising out of the 2000 incident came before it (presumably as part of the process of ascertaining the basis of the plaintiff’s acquittal). The matter was left with the plaintiff’s solicitors. On the following day the solicitor sent a letter to NCAT stating, inter alia, that she was instructed that [the plaintiff’s wife] “has no independent memory of the court proceedings in 2000 and cannot add anything further to the material filed by [the plaintiff]”.

NCAT’s decision

41. In its decision, NCAT set out the background of the application, summarised some of the evidence before it and outlined the operation of the Working with Children Act. It then referred to each of the factors in s 30(1). As part of that analysis it considered the circumstances of the 1970 conviction. NCAT noted that the victim was the plaintiff’s girlfriend and that she was fifteen and a half years old at the time he began his sexual relationship with her. After initially denying that he knew her, it appears the plaintiff made full disclosure to the police and indicated he intended to marry her. NCAT described the 1970 conviction as a “serious offence” but one that “did not fall into the upper end of seriousness of such an offence” (NCAT reasons at [33]).

42. In relation to the plaintiff’s 1968 conviction, NCAT noted that it was his first offence and that the victim was the five year old grandson of the plaintiff’s aunt. The plaintiff was convicted of the offence in 1968 and given a two year good behaviour bond. NCAT also noted the plaintiff accumulated some convictions for assault and the like between November 1982 and 1993.

43. NCAT then addressed the 2000 incident. NCAT did not have the transcript of the presiding magistrate’s judgment or any material recording the reason why the charge was dismissed. However, it noted the following was written on a Court charge sheet (NCAT reasons at [50]):

“Issue = intent

No dispute actus reus.”

44. NCAT then summarised the material before it relating to that charge. This included a “000” call at 5:50am on 1 January 2000 in which the plaintiff was recorded asking the police to attend and was asked by the operator “What’s the problem there?” The plaintiff responded “Child molesting, the wife said”. The call continued:

“[Operator]   And who’s involved in that?

[Applicant]   Her husband.

[Operator]   So that’s you?

[Applicant]   Yeah, that’s me.

[A lot of background noise and a female voice in particular.]

[Applicant]:   Yes, I am.

[Operator]   Who else does this involve?

[Applicant]   Me wife.

[Operator]   And who else?

[Applicant]   Me grandson.

[Operator]   Alright, we’ll get the police there.”

45. NCAT referred to a statement from a police officer who attended the plaintiff’s home at 6:30am that day. He said he found a number of people arguing on the front lawn, including the applicant and the son of the applicant’s wife, both of whom were armed (NCAT reasons at [54]). The police officer recorded the plaintiff stating:

“Look, I gotta tell ya. I was lying in bed with my wife. We haven’t had sex for over three months and I thought tonight I might get lucky. So I reach over like this [indicating a motion with his left hand] and I touched my grandson on his thing, down here, you know [indicating his pubic region]. I want to make a statement about all this alright?”

46. NCAT also summarised a statement from the plaintiff’s wife which was provided to the police in 2000 (NCAT reasons at [56]). She recalled going to bed after the New Year’s Eve celebration, with her youngest grandson asleep in a cot in the bedroom and the eldest grandson asleep in his bed. She recalled being woken up early by the plaintiff. She said her eldest grandson was next to her in the bed when she first woke up. She said the plaintiff touched her on the shoulder. She said he was crying. She recounted the following discussion with the plaintiff:

“[Applicant’s wife]:   Is it to do with [eldest grandson]?

[Applicant]:   I didn’t mean it. I thought it was you.”

47. NCAT recorded that, at the conclusion of this statement, the plaintiff’s wife stated that she had fears for the safety of her grandchildren, and she did not want her husband living in the same house. (It was not suggested that she maintained that belief by the time of the hearing before NCAT.)

48. NCAT next summarised the plaintiff’s oral evidence before it and the evidence of the eldest grandson in his affidavit as follows:

“58  In his oral evidence, the applicant said he did not recollect what had occurred on this day. In his affidavit, the applicant’s eldest grandson said he remembered the incident. He said ‘At some stage that night I woke and got into Nan and Pop’s bed and went back to sleep, which was normal for me’. He said his brother was sleeping in his cot. He said early in the morning ‘Pop touch me in the groin area’ and he got up and hopped into the cot with his brother. He said ‘Nan was really irate and Pop was really upset. I remember that he kept apologising’. He said he never thought the applicant intentionally tried to hurt him – he thought it was a mistake. He said he never felt unsafe around the applicant, but he did recollect that the applicant had moved out of the house for a while.” (emphasis added)

As further discussed below, the first sentence in this extract is an incomplete summary of the plaintiff’s evidence concerning the 2000 incident.

49. NCAT concluded that the plaintiff’s “overall criminal conduct” was serious, although it also noted that it had been more than twenty years since he had been convicted of an offence (NCAT reasons at [20]).

50. NCAT addressed the factor in s 30(1)(i) of the Working with Children Act, namely the likelihood of repetition by the applicant of the disqualifying offence and the impact upon the children of any such repetition. It referred to the evidence of the psychologist. NCAT stated that it was reluctant to accept that the applicant did not recollect the events of 2000, a matter which was the subject of complaint.

51. In relation to the 2000 incident, NCAT concluded as follows:

70  On the material before the tribunal, I share the concerns of the respondent in regard to the January 2000 incident. In the absence of any explanation from the applicant or his wife, who was present throughout the hearing, the material before the tribunal supports a finding that the event did in fact occur. As noted above, the contemporaneous records indicate the applicant’s wife immediately presumed that the applicant had engaged in some form of sexual conduct. Its occurrence was also regarded sufficiently serious for the applicant to have been required to not reside at the home for two years and the applicant’s contact with his grandchildren was restricted for some time. While the evidence of the applicant’s grandson is that he now believes what happened was a mistake, this is not how it was regarded at the time.” (emphasis added)

52. Next, NCAT referred to the criteria in s 30(1)(j), which it paraphrased as being “any further information given by the applicant”, and stated that the plaintiff did not put before it “any further material other than which has already been mentioned” (NCAT reasons at [74]).

53. The final section of NCAT’s decision is headed “Conclusion”. The relevant passage is the following:

“77  In summary my findings are that the applicant’s disqualifying offence and the earlier offence of buggery are the most serious as they involved a child. I also find that the applicant’s overall criminal conduct is serious. As the disqualifying offence and the offence of buggery were committed more than 44 years ago, I find that the likelihood of the applicant committing further offences of this kind is low. However, I am not satisfied that the applicant has established that he has any insight into his earlier offending conduct or his conduct on 1 January 2000. There is no doubt that the incident on 1 January occurred – it involved a child and a charge was laid against him. Although the applicant was not convicted of the charge steps were taken as his behaviour led to concerns about him posing a risk of harm to his grandchildren. Hence, in the absence of the applicant giving some evidence about his insight or explanation about the events of 1 January 2000, I find that the applicant has failed to rebut the statutory presumption that he poses a risk to the safety of children.” (emphasis added)

54. Consistent with this conclusion NCAT refused the plaintiff’s application for an enabling order.

Grounds 5 and 6: Natural justice and the finding that the “event did in fact occur”

55. At the hearing of these proceedings the plaintiff was granted leave to amend his summons to add two complaints pleaded as follows:

“5   The Tribunal failed to disclose critical issues or factors on which the decision turned and the plaintiff had no opportunity to deal with it. The issues or factors were:

a.   That the plaintiff was reluctant to be fully frank;

b.   That in the absence of an explanation from the plaintiff or his wife the material before the Tribunal supports a finding that the event did in fact occur;

c.   That the evidence of the plaintiff’s grandson was that he now believes what happened was a mistake and that this is not how it was regarded at the time;

d.   That the plaintiff placed insufficient material before the Tribunal.

6   The Tribunal failed to provide the plaintiff with a fair hearing in that the plaintiff did not have an adequate opportunity to be heard taking into account his particular characteristing.”

56. I will deal with ground 5(b) first.

57. The material before NCAT concerning the 2000 incident suggested there was no issue that the plaintiff had touched his grandson's genitalia, but that there was an issue as to whether that act was intentional or a mistake. The plaintiff had repeatedly stated that he did not know his grandson was in the bed and that he thought he was making a sexual advance on his wife. In those circumstances, to establish that the plaintiff was guilty of an offence under s 61M(2) of the Crimes Act 1900 it was necessary for the prosecution to prove, inter alia, that he intended to touch the genitalia of his grandson and did not believe that it was his wife. One interpretation of the note referred to above at [43] is that it records the presiding magistrate identifying that as the issue to be determined. Beyond that, the evidence did not reveal why the charge arising out of the 2000 incident was dismissed.

58. Ground 5(b) of the Amended Summons refers to the finding in [70] of NCAT's reasons that the “event” occurred (see [51]). In light of the material just noted, the finding that the “event” happened may have simply recorded a bare finding that the plaintiff touched his grandson, or it could have constituted a finding that he did so intentionally. Counsel for the plaintiff submitted that it was the latter. Counsel for the Guardian did not dispute that. I accept that it was the latter. Given that the fact of touching was not in dispute, then a line of reasoning focussing on an alleged lack of explanation from the plaintiff or his wife to merely support a finding that physical contact was made does not seem logical. Further, the significance attached by NCAT in [77] of its reasons to the “incident” (see [53]) and the plaintiff’s (alleged) lack of explanation or insight suggests that it proceeded on the basis that the “incident” involved a deliberate touching of the eldest grandson by the plaintiff.

59. It follows from M v M and the structure of the statute that there was nothing to preclude NCAT from making a finding to this effect (although it was not obliged to). The present complaint concerns the alleged absence of any notice being given to the applicant that such a finding would be made.

60. I have already described the course of the hearing before NCAT. When he gave evidence before NCAT it was not expressly put to the plaintiff that he deliberately touched his grandson. As noted, the transcript of the hearing before NCAT that was provided to the Court did not include the submissions. This Court was informed that they were not recorded. The plaintiff bears an onus of proving they had no notice of a matter. It was open to him to provide less than ideal means of proof of what was submitted, such as calling the solicitor who appeared for him before NCAT to give her recollection of the hearing. However the plaintiff did not take this course.

61. This evidentiary lacuna was filled by the candour of Counsel for the Guardian, Ms Lowson, who appeared before NCAT and in this Court. The Court asked Ms Lowson if she contended before NCAT that it should make an express finding that the “event” occurred in the sense explained above. Ms Lowson responded “I don't believe that I did”. She explained that her submissions were directed to the approach outlined in M v M in that she submitted that the material available to NCAT concerning the events of 2000 warranted a conclusion that the plaintiff had not discharged his onus of proving he was not a risk. This concession is supported by NCAT's reasons which refer to Ms Lowson's submissions to it concerning the 2000 incident as follows (NCAT reasons at [66]):

“[Ms Lowson] also submitted that the applicant’s failure to explain what occurred on 1 January 2000 and why the charge was subsequently dismissed gave rise to an ongoing concern about a risk of the applicant reoffending.”

62. I will proceed on the basis that no submission was made by the Guardian and it was not suggested by the NCAT member that the “event” occurred.

63. Did this failure amount to a breach of procedural fairness (or a statutory equivalent)? The starting point is the statutory scheme (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [26]; “SZBEL”). Part 4 of the CAT Act deals with the practice and procedure of NCAT. Section 38 provides:

“38 Procedure of Tribunal generally

(1)   The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision.

(2)   The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.

(3)   Despite subsection (2):

(a)   the Tribunal must observe the rules of evidence in:

(i)   proceedings in exercise of its enforcement jurisdiction, and

(ii)   proceedings for the imposition by the Tribunal of a civil penalty in exercise of its general jurisdiction, and

(b) section 128 (Privilege in respect of self-incrimination in other proceedings) of the Evidence Act 1995 is taken to apply to evidence given in proceedings in the Tribunal even when the Tribunal is not required to apply the rules of evidence in those proceedings.

Note. Section 67 also prevents the compulsory disclosure of certain documents in proceedings in the Tribunal that would, in proceedings before a court, be protected from disclosure by reason of a claim of privilege.

(4)   The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.

(5)   The Tribunal is to take such measures as are reasonably practicable:

(a)   to ensure that the parties to the proceedings before it understand the nature of the proceedings, and

(b)   if requested to do so – to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and

(c)   to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.

(6)   The Tribunal:

(a)   is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and

(b)   may require evidence or argument to be presented orally or in writing, and

(c)   in the case of a hearing—may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases.”

64. Division 3 of Part 4 makes provision for the participation of parties in proceedings. Subsection 45(1) provides that a party “has the carriage of the party's own case [before NCAT] and is not entitled to be represented by any person” unless leave is granted. Subsection 46(1) enables NCAT to call a witness of its own motion as well as to examine and cross examine a witness.

65. These provisions reveal that NCAT has an adjudicative function of deciding between the competing versions of the parties before it, each of whom has the “carriage of its case”. However, the judicial model of adversarial determination does not adequately describe NCAT’s role as it is not bound by the cases presented by the respective parties. It can call and examine witnesses of its own motion and can generally “inquire into and inform itself on any matter … as it thinks fit”. Provisions similar to these were analysed by Basten JA in Italiano v Carbone& Ors [2005] NSWCA 177 at [104]ff. His Honour concluded (at [114]) that such bodies fell “somewhere between the two kinds of procedure identified by Hayne J in SAAP” v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; 228 CLR 294, namely a “judicial model” and an “inquisitorial model”.

66. It was not disputed that the finding made by NCAT that the “event” occurred was one that could only have been made if the plaintiff had a reasonable opportunity to be heard against it. This is required by s 38(5)(c) of the CAT Act which in this respect embodied the relevant common law requirement (Mahon v Air New Zealand Ltd [1984] AC 808 at 821; Annetts v McCann [1990] HCA 57; 170 CLR 596).

67. Counsel for the Guardian submitted that there was no obligation on the part of NCAT to expressly alert the plaintiff to the possibility that such a finding would be made in circumstances where he was “presented with evidence that contained material that supports such a finding and in circumstances where the [making of] a finding is obviously going to be relevant to the finding of risk”. This submission directs attention to whether the course of the proceeding was such that it should have alerted the plaintiff to at least the possibility that a finding that “the event” occurred would be made (or whether it was reasonably perceived as being “in the ring”: Victims Compensation Fund Corporation v Nguyen [2001] NSWCA 264; 52 NSWLR 213 at [44] per Mason P). If that did not occur then it can be safely concluded that the plaintiff was not afforded “a reasonable opportunity to be heard” within the meaning of s 38(5)(c) of the CAT Act. However, even if it did occur, that would not necessarily mean that the obligations imposed by s 38(5)(a) or s 38(5)(c) were discharged (see Carbone at [104] to [105]; Jones v Ekermawi [2009] NSWCA 388 at [46] per Sackville AJA; “Jones”).

68. One matter relevant to determining the adequacy of the opportunity to be heard is to ascertain what was obvious or should have been obvious to the plaintiff from the statutory scheme under consideration (Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; 49 FCR 576 at p 591-592). In this case s 30 of the Working with Children Act established the factors to be considered as part of NCAT's consideration of whether he satisfied s 28(7). Often it will not be difficult to conclude that a legally represented applicant was cognisant of those factors although if, in a particular case NCAT suspects that may not be the case, then an obligation under s 38(5) of the CAT Act to make that clear may arise (Jones id).

69. However, resorting to s 30 as a statement of the issues for resolution by NCAT only takes the matter so far given the generality with which the relevant factors are stated (see SZBEL at [34]). In this case, where the plaintiff was advised by the Guardian's notice under s 20 of the Working with Children Act that he was a disqualified person by reference to the conviction for carnal knowledge, it may be easy to conclude that he was not denied a reasonable opportunity to be heard before findings were made that involved an application of the criteria in s 30 to the circumstances of that conviction. Certainly the contrary has not been demonstrated. Further, in circumstances where the stay application involved a canvassing of the 2000 incident, the Guardian served documentary material prior to NCAT's hearing concerning that incident, the plaintiff was cross examined about that incident, and a submission was made to the effect of that contended for by Ms Lowson, then again it may be concluded that a legally represented party was not denied a reasonable opportunity to be heard before any findings reflecting that submission were made.

70. Nevertheless neither a resort to s 30 of the Working with Children Act nor the service of material concerning the 2000 incident of itself was sufficient to raise the possibility that it would be found that the plaintiff committed an offence for which he had previously been acquitted. A finding to that effect is a severe one and needed to be clearly foreshadowed. Even though the 2000 incident was canvassed at the hearing, the course of that hearing pointed the plaintiff and his legal representative away from anticipating the possibility of such a finding being made. Given the seriousness of such a finding, it could be expected to be plainly put to the plaintiff in cross examination that he intentionally touched his grandson in 2000, or that he would be clearly warned of the potential for such a finding during submissions either by Counsel for the Guardian or by the NCAT member. Yet none of those steps were taken. The discussion about the possible calling of the plaintiff’s wife only reinforces this. It appears to have been directed to ascertaining the basis for the plaintiff’s acquittal but not re-agitating whether he was guilty.

71. The end result is that neither the statutory context, the material that was supplied to the plaintiff prior to the hearing, or the hearing itself was capable of alerting the plaintiff to the realistic possibility that a positive finding would be made to the effect that he engaged in conduct amounting to an offence for which he had already been acquitted. In that significant respect, he was not provided with a “reasonable opportunity to be heard”.

72. This conclusion suffices to establish that s 38(5)(c) of the CAT Act was not complied with. It is sufficient to render NCAT’s decision invalid (Carbone at [115]). It clearly constitutes an error of law and, for the reasons discussed, can be agitated on appeal on a question of law. The failure was material in that the finding that the event occurred was significant to NCAT's decision. There was material capable of persuading NCAT to the contrary, including the statement made by the plaintiff noted in [45] and his evidence to NCAT as explained below. Had it been raised, it may have warranted consideration of whether the plaintiff’s wife would be called to give evidence about the night in question.

73. Given that the ground was framed by reference to the common law, it is appropriate to record that these findings also mean that there was a breach of the rules of natural justice on the part of NCAT. The plaintiff was denied a reasonable opportunity to be heard in respect of a (severely) adverse finding and was denied the possibility of a successful outcome. Thus he was occasioned a “practical injustice” (Parker v Comptroller-General of Customs [2009] HCA 7 at [12] per French CJ citing Re Minister for Immigration and Multicultural Affairs; ex parte Lam [2003] HCA 6; 214 CLR 1 at [35] to [37] per Gleeson CJ). In Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143; 131 FCR 28 the Full Court of the Federal Court held that an appeal from a decision of the Administrative Appeals Tribunal on the ground of a denial of natural justice raised a question of law within the meaning of s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (at [8] per Gray ACJ and North J; contra Gyles J at [67]). This approach accords with the authorities noted in [35].

74. Ground 5(b) is established.

Balance of natural justice complaints

75. Ground 5(a) of the Amended Summons complains that NCAT denied the plaintiff procedural fairness by reason of its finding that he was “reluctant to be fully frank” (see [116]). I reject this ground. NCAT's reasons record that Ms Lowson submitted that the plaintiff's memory loss was “disingenuous” (NCAT reasons at [67]). This was more than sufficient to put the plaintiff on notice that it might be found that his claimed lack of recollection was not genuine.

76. Ground 5(c) contends that NCAT failed to disclose to the plaintiff the issues or factors upon which the decision turned by reason of its failure to alert him to its observation at the conclusion of [70] of its reasons that “[w]hile the evidence of the applicant's grandson is that he now believes what happened was a mistake, this is not how it was regarded at the time”. This reference to how it was regarded at the time appears to be a reference to the evidence of the plaintiff's wife noted in [46] to [47], and the response of the authorities noted by NCAT. All the material concerning that was served on the plaintiff well in advance of the hearing. It was not demonstrated that it was not referred to in submissions before NCAT. Otherwise NCAT was not generally required to provide a “running commentary” of its assessment of the evidence or the plaintiff's prospects so as to “forewarn … of all possible reasons for failure” (Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57 at [31] per Gleeson CJ and Hayne J) and nor was it required to expose its thought processes or provisional views for comment before making the decision (Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 at [9] per French CJ and Kiefel J).

77. Ground 5(c) complains that NCAT failed to provide the plaintiff with the “opportunity to deal” with the “issue or factor” that he “placed insufficient material before the Tribunal”. In written submissions it was explained that this was a reference to NCAT’s conclusion that it was “not satisfied that the applicant has placed sufficient material before the Tribunal to displace the statutory presumption in subs 28(7)” of the Working with Children Act (at [10]). This contention has no substance. In Kioa v West [1985] HCA 81; 159 CLR 550 at p 587 Mason J noted that an “applicant is entitled to support his application by such information and material as he thinks appropriate and he cannot complain if the authorities reject his application because they do not accept, without further notice to him, what he puts forward”.

75. Ground 6 complains that NCAT failed to provide the plaintiff with a “fair hearing” in that he did “not have an adequate opportunity to be heard, taking into account his particular characteristics”. In oral submissions, it was submitted that NCAT “should have required the Guardian to amend their notice [to include reference to the 1968 conviction and the 2000 incident] to put specifically to the plaintiff on what basis they say he was a risk to children”.

76. This complaint reflects a continual theme of the plaintiff’s submissions which focussed on the reasons given by the Guardian for concluding that an applicant was a disqualified person in the notice provided under s 20 of the Working with Children Act, and complained about NCAT inquiring into matters beyond any disqualifying conviction that was referred to in that notice. One aspect of that has already been rejected, namely the contention that NCAT is precluded from considering any conviction or conduct beyond that notified by the Guardian (see [24]). The related contention was that clear notice of any inquiry wider than the circumstances of the disqualifying offence was required.

77. In SZBEL the High Court considered the circumstance of the Refugee Review Tribunal (the “RRT”) addressing different issues to those posed by the delegate of the Minister for Immigration who determined the application for a protection visa at first instance. The Court found (at [35] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ) that:

“… if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are ‘the issues arising in relation to the decision under review’.”

81. This statutory context is different to that considered in SZBEL. Under the Working with Children Act, in cases such as this, NCAT does not address the same issue as the Guardian in that the former undertakes a form of risk assessment whereas the Guardian is precluded from doing so. Under the Migration Act 1958 the RRT conducts a de novo review of the decision of the delegate of the Minister for Immigration.

82. However this difference in the statutory regime only reinforces the need for clear notice to be provided to an applicant to NCAT under s 28 of the Working with Children Act if a conviction or conduct beyond that notified by the Guardian is to be deployed as a basis for contending that the plaintiff was a risk or has not proven that he was not a risk. I have already upheld a particular failure on the part of NCAT to take such a step.

83. At one point, the plaintiff’s submissions in support of ground 6 contended that some form of written notice particularising the reliance placed on the 1968 conviction and the 2000 incident was required to be given in advance of the hearing before NCAT. Neither the CAT Act nor the Working with Children Act specifies that such a step is required. Nevertheless it may be that, if that does not occur, then a breach of s 38(5) of the CAT Act or the common law requirement of procedural fairness will ensue. Further, it is possible that, if an applicant is only appraised of the matter at a hearing, then NCAT will be obliged to adjourn the proceedings even if the applicant for review does not seek an adjournment (see Carbone at [107]; Jones at [46]). NCAT could seek to minimise the prospect of that occurring by requiring written notice to be given to an applicant in advance of a hearing of the matters to be relied on in answer to their case. However, it is not the function of this Court to prescribe that. In the end result the submissions in support of this ground did not identify any specific failing beyond that which I have already addressed.

84. Accordingly I reject grounds 5(a), 5(c), 5(d) and 6 of the Amended Summons.

Ground 2(b): The Plaintiff’s evidence

85. Ground 2(b) contends that NCAT “misapplied, misinterpreted, or failed to apply the test in section 30” of the Working with Children Act by its failure to consider “that the plaintiff's evidence at the hearing was consistent with the statements he made on 1 January 2000”.

86. This ground was barely addressed in the plaintiff's written submissions, but assumed greater significance during the hearing in this Court. I have already noted that s 30(1) obliged NCAT to consider the conduct of the Plaintiff since the disqualifying events occurred (s 30(1)(b)) and to make an assessment of the likelihood of the repetition by the plaintiff of any of the disqualifying offences or conduct as part of its overall assessment of the risk he posed to children. As part of the analysis NCAT was entitled to make findings about the events in 2000 and to utilise material concerning those events as part of its assessment of the risk he posed.

87. NCAT was obliged by s 30(1)(j) to “consider … any information given by the applicant in, or in relation to, the application”. The reference to the “application” in s 30(1)(j) is to the application “under this Part” being the application under s 28(1) for an enabling order. Evidence given by the applicant before NCAT is clearly “information” of the kind referred to in s 30(1)(j).

88. The significance of the 2000 incident to NCAT’s decision is self-evident from [77] of its reasons (see [53]). In that paragraph NCAT referred to the “absence of the applicant giving some evidence about his insight or explanation about the events of 1 January 2000”. Further, in [70] of NCAT’s reasons extracted above (at [51]) NCAT referred to the supposed “absence of any explanation from the applicant” as a matter supporting the finding that the “event did in fact occur”, a matter that has already been addressed.

89. NCAT’s reference to the absence of an explanation from the plaintiff refers to its earlier summary of the plaintiff’s evidence as being that he “did not recollect what had occurred” on the day of the 2000 incident (see [48]), and its scepticism about his lack of recollection. However that was an incomplete description of his evidence. His evidence in chief on the topic was as follows:

“Q.   Now the next thing I want to talk to you about is the incident that happened with […], your grandson, in late 99 or early 2000. It happened on New Year’s Eve or New Year’s Day?

A. Yeah

Q.   What do you remember about what happened with that?

A.   Only just I was rowing with the boys and I got up because I had been drinking heavily the night before I was probably still a bit hung over and that’s the only thing I can remember.

Q.   Do you remember what happened during the night though that caused …

A.   No.

Q.   Caused the concerns? You don’t remember what happened …

A.   Not until they told, the wife told me the next day.

Q.   Not till she told you the next day. So you don’t have any memory of having …

A.   No.

Q.   Of talking to her the night before? The next day, what do you remember as happening the next day or what was told to you the next day?

A.   That I was touching [his grandson].

Q.   And what do you say about that?

A.   Well I thought, well that’s the first time I ever known him to get into bed with us. Me and the wife and I thought it was only me and her in bed.

Q.   And tell me what happened then when you, you thought it was only her in bed?

A.   Beg your pardon?

Q.   So you thought it was only her in the bed that night and what happened?

A.   Well that’s as far as I know. They reckon I started grabbing him.

Q.   And what do you say about that?

A.   Well I can’t remember much about that.

Q.   You went to court for that charge didn’t you?

A.   Well tell you the truth I don’t know, I don’t remember.

Q.   You don’t remember, okay, all right. Can you tell me have you spoken to your doctor at all about your poor memory?

A.   Beg your pardon?

Q.   Have you spoken to your doctor at all about your bad memory?

A.   Only the bloke that spoke to the wife, told her because I can’t, no, when they tell me anything I walk out the door and I forget all about what they said.” (emphasis added)

90. In cross examination the plaintiff also referred to his lack of memory. His answers included the following:

“Q.   You said earlier that on that night when [your eldest grandson] was in the bed that that was the first time you’d known him to come into bed with you?

A.   Not with me.

Q.   With you and your wife?

A.   Yeah well you want to make yourself plain please.

Q.   Into the bed with you and your wife?

A.   Well I didn’t know he was in there because I was already in bed asleep.

Q.   I understand you say that but I’m just saying, you said that that was the first time that you had known [your grandson] to come into the bed-

A.   Yes

Q.   – with you and your wife is that right?

A.   Yes

…

Q.   And you say that you don’t have any memory of that night but you do remember that [your grandson] was in bed with you and your wife?

A.   No. I was only, I said that when I woke up the next morning or when they woke me up.

Q   Yes

A.   That’s when I knew he was in bed. And I didn’t know before that.”

91. In re-examination the plaintiff stated that prior to the incident in 2000 neither of his grandchildren had ever “slept in bed” with himself or his wife.

92. This ground of review asserts that the evidence given by the plaintiff to NCAT was consistent with the statement he made to the police in 2000 as recorded at [45]. This is partly incorrect in that that statement suggests he had a recollection of the moment when he touched his grandson, whereas in his evidence fourteen years later he denied any recollection of that moment. However it is not correct to state, as NCAT did in [58] of its reasons (see [48]), that he “did not recollect what had occurred on this day” if that is a reference to 1 January 2000. To the contrary, in his evidence the plaintiff proffered some evidence that was consistent with his statement to the police, namely that he never intended to indecently touch his grandson because he did not know his grandson was in his bed. This was the explanation given to the police in 2000 and it was supported by the evidence the plaintiff gave to NCAT.

93. NCAT’s description of the plaintiff’s evidence in [58] of its reasons ignores these aspects of the plaintiff’s evidence and this is compounded by its later references in [70] and [77] of its reasons to there being an “absence of any explanation”. As stated, the plaintiff did give an explanation for his conduct, namely that he did not know his grandson was in the bed. It was an explanation that, if accepted, was inconsistent with the finding made in [70] that the “event” occurred, and was capable of affecting the critical part of NCAT’s analysis in [77].

94. NCAT was obliged by s 30(1)(j) to “consider … any information” provided by the applicant in relation to the application. There are various formulations of what “consider” entails, but provisions such as s 30 that specify mandatory considerations are usually taken as requiring that they be “give[n] weight … as a fundamental element in making” the relevant determination (R v Hunt; ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329 per Mason J). Subsection 30(1)(j) is an example of the type of provision referred to by Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [74], namely “a particular statute [which] makes the matters which are advanced in the course of a process of decision-making relevant considerations for the decision-maker”. Further, in Lo at [10] Basten JA observed that:

“[i]f a decision-maker who gives reasons for a decision makes no reference to a particular matter, it may be inferred that he or she disregarded it, either deliberately or through inadvertence. In either case, if it were a mandatory consideration, there would be an error of law.”

95. In some cases the absence of any reference in NCAT’s reasons to some incidental or minor aspect of a plaintiff’s evidence will not ground an inference that NCAT failed to comply with s 30(1)(j) (see Lo at [44] per Macfarlan JA). However, in this case NCAT omitted the plaintiff’s explanation for the 2000 incident from its narrative of his evidence and acted on the correctness of that omission to make a critical finding of fact adverse to him in [70] of its reasons before concluding that he had not discharged the onus in s 28(7). Consistent with the above passage from Lo, the conclusion that NCAT disregarded a critical item of information supplied by the plaintiff and thereby failed to act in accordance with s 30(1)(j) is overwhelming. In doing so it erred in law and this entitles this Court to intervene when determining an appeal on a question of law (see [35]).

96. This ground is established.

Balance of Ground 2

97. The balance of ground 2 contends that NCAT "misapplied, misinterpreted, or failed to apply the test in section 30" of the Working with Children Act by its failure to consider four other matters said to be relevant to the 2000 incident, namely:

"(a)   That the plaintiff immediately notified the police;

…

(c)   That the child's evidence at the hearing was consistent with the statement he made on 1 January 2000;

(d)   That the plaintiff resided with the child from 2002 to 2014 without incident;

(e)   That there were no adverse reports or finding against the plaintiff by the Department of Family and Community Services.”

98. At the hearing of these proceedings Counsel for the plaintiff sought to identify various subparagraphs of s 30(1) as the source of NCAT's obligation to “consider” these matters. The matters noted in particulars (a), (d) and (e) were all said to be “conduct” of the plaintiff that was expressly required to be considered by s 30(1)(b), (h) and (i). However in substance these are no more than factual matters which are sought to be used to re-agitate the merits of NCAT's factual finding concerning the 2000 incident. NCAT referred to the plaintiff's phone call to the police, but did not give it the weight the plaintiff now contends for (see [44]). As for particulars (d) and (e), the entire premise of NCAT's decision is that the last matter of concern it had to consider was the 2000 incident.

99. In relation to particular (c), during the hearing in this Court this complaint was reformulated as there being an obligation “on the tribunal to look at the most recent evidence” and the eldest grandson’s affidavit was the most recent evidence. The obligation to which Counsel was referring was said to be derived from the following statement by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at p 45 (“Peko”):

“But that principle is itself a reflection of the fact that there may be found in the subject-matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker.”

100. The context in which this statement was made concerned a consideration by the Minister for Aboriginal Affairs of the detriment that would or may be occasioned if land was granted to a trust for the benefit of its traditional owners (Aboriginal Land Rights (Northern Territory) Act 1976 (Cth); s 50(3)(b)). Hence updated material concerning that detriment was the “current material” that the Minister was required to consider in making their decision. That said, the principle is one of general application.

101. The present context is that the “current material” referred to is a statement by a witness concerning an event that occurred fourteen years prior to NCAT’s decision when there is material available from that time. The short answer to this complaint is that NCAT’s decision was “made on the basis” of the eldest grandson’s affidavit in the sense that it was expressly considered, although the weight to be attached to it was diminished. The principle stated by Mason J in Peko above does not require that, when making findings of fact concerning past events, primacy be given to recently obtained evidentiary material in preference to material that was contemporaneous with the events in question. To the contrary, the weight to be given to such material is a matter for the decision maker as the fact finder.

102. I reject the balance of ground 2.

Ground 1: Misstatement of the object of the Working with Children Act

103. This ground refers to the following statement in NCAT’s reasons (at [7]):

“That is, the object of the Act is not to impose additional punishment on a disqualified person but to eliminate possible risks to the safety of children.”

104. Ground 1 of the appeal contends that this statement is an erroneous over-statement of the “object” of the Working with Children Act applicable law by NCAT. By reference to various authorities, including the above extract from the judgment of Young CJ in Eq in V (see [26]), it was contended that NCAT erred in referring to the elimination of (all) possible risks to children.

105. I agree that the statement of NCAT seized upon by the plaintiffs when viewed in isolation attributes to the Working with Children Act an object that even it does not aspire to. However, administrative decisions and those of administrative tribunals are not viewed in isolation. They are not construed “minutely and finely with an eye keenly attuned to the perception of error” (Collector of Customs v Pozzalanic Enterprises Pty Ltd [1993] FCA 456; 43 FCR 280 at 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272).

106. The critical question is whether NCAT applied the correct statutory test under s 28 and had regard to the factors in s 30 of the Working with Children Act. It set out those provisions in its reasons. Crucially it identified that the test to be applied under s 28 was that stated by Young CJ in Eq in V, a test which the plaintiff accepts. Subject to considering ground 3, it is clear that NCAT applied s 28(7) in accordance with the approach stated in V. Any overstatement about the “object” of the Working with Children Act did not inform its approach to the relevant provisions it had to apply.

107. I reject ground 1.

Ground 3: Misapplication of the test in s 28(7)

108. Ground 3 of the Amended Summons contends that NCAT “misapplied, misinterpreted, or failed to apply the test in s 28(7) of the [Working with Children Act] by finding that the plaintiff failed to rebut the presumption because he could not recall the events of 1 January 2000”.

109. The simple answer to a ground framed in this manner is that it misstates NCAT’s reasoning. NCAT found that the “event”, being the indecent assault of the eldest grandson, occurred. Its finding was in part based on the absence of an explanation from the plaintiff, a matter that has already been addressed. However, consistent with M v M, it was entitled to and did use that finding as part of its assessment of risk. Its approach did not involve a misconstruction or misapplication of s 28(7).

110. I reject ground 3.

Ground 4: Unreasonableness and findings of fact for which there is no evidence

111. Ground 4 of the Amended Summons provides:

“It was unreasonable and there was no evidence to support the following findings and conclusions:

a   That there was no medical evidence about memory loss;

b   Discounting the evidence of the psychologist, Mr Tyrer because he had been appointed by the Department of Family and Community Services to work with the family after the January 2000 incident;

c   That Mr Tyer’s opinions were not conclusive,

d   The material supports the finding that ‘some form of sexual conduct’ occurred;

e   That [the eldest grandson] changed the belief he held in 2000 to the belief he held when he gave evidence at the hearing;

f   That the plaintiff does not consume alcohol to the extent he did previously.”

112. These grounds attack various findings of fact made by NCAT. The starting point is to ascertain the basis upon which such a challenge can be made. There are three relevant standards. The first is applicable to facts the objective determination of which was a matter upon which NCAT’s power or jurisdiction depended (Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; 46 NSWLR 55 at [36] to [38] per Spigelman CJ). If the facts are of that character then this Court can determine them (Timbarra id). This possibility can be put aside as these facts are clearly not of that character.

112. The second standard is apposite where the facts being challenged form part of the determination of a state of satisfaction or an opinion upon which the exercise of power or jurisdiction by NCAT depended. Such a state of satisfaction or opinion is a “jurisdictional fact” (Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; 244 CLR 144 at [57] per French CJ). If the power is so conditioned then facts found in the course of forming that opinion or satisfaction can be reviewed on a wider basis than merely enquiring as to whether there was some evidence to support them (Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 (“Eshetu”) at [138]ff per Gummow J). Instead it has been held that such an opinion or state of satisfaction can be reviewed if “the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds”: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992 at [38] (per Gummow and Hayne JJ); see also Eshetu at [145] per Gummow J; Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 at [34] and [37] per McHugh and Gummow JJ).

113. The third standard is applicable if the challenged facts do not constitute part of the formation of such an opinion or satisfaction. Such findings can only be challenged if there was no evidence to support them (Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 (“Bond”) at p 355-356 per Mason CJ; Eshetu at [138] per Gummow J; Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; 199 CLR 135 at [59] per Gaudron J). A challenge on this basis is capable of being agitated on an appeal restricted to a question of law (Kostas at [91] per Hayne, Heydon, Crennan and Kiefel JJ). The relevant passage from the judgment of Mason CJ in Bond is instructive, if not definitive, as to the narrowness of this form of review. It includes the following statement (at p 356):

“Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference – in other words, the particular inference is reasonably open – even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.”

115. As no argument was directed at the hearing as to which of the second or third forms of review was appropriate, I will address this argument on the basis most favourable to the plaintiff, namely by applying the second standard.

116. Particular (a) to ground 4 concerns the following part of NCAT’s reasons (at [68]):

“I also accept the applicant may not fully recollect what happened many years ago, but it is difficult to accept, in the absence of any medical evidence about memory loss, that he did not recollect the events of 2000. Hence, I was left with the impression that there was some reluctance by the applicant to be fully frank.”

117. In oral argument Counsel for the plaintiff refined this complaint stating that there was no evidence that the plaintiff had “memory loss” or it was “unreasonable” for NCAT to find that he did. The short answer to the complaint is that NCAT did not find that he had “memory loss”. Instead it noted that he stated in his evidence that he had no recollection of the incident in 2000. I have already explained how that represented a misstatement of the position, but it is correct in that he stated that he did not recall some (significant) aspects of that incident (see [89] to [90]). NCAT then stated that it did not completely accept that professed lack of recollection “in the absence of any medical about memory loss”. In this Court it was accepted that there was no such medical evidence before NCAT.

118. None of this reasoning involved the making of “findings or inferences of fact which were not supported by some probative material or logical grounds” (Eshetu at [145]). Instead it simply involved NCAT making “a finding on credibility which is the function of the primary decision maker par excellence” (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; 168 ALR 407 at [67] per McHugh J).

119. Particulars (b) and (c) to ground 4 concern the following part of NCAT’s reasons (at [69]):

“While Mr Tyrer [the psychologist called by the plaintiff] had been appointed by the Department of Family and Community Services to work with the family after the January [2000] incident, I do not believe this is a basis to reject his evidence. However, it is a factor to be considered when deciding what weight to be placed on the opinions he has expressed in his report about risk of harm. These opinions are in any event not conclusive.”

120. Thus NCAT factored into its assessment of the weight to be attached to Mr Tyrer’s opinions the fact that he had worked with the family since 2000. While it is not entirely clear, this appears to have regard to the obvious potential for any person in such a situation to develop an affinity with the family and not wish to undermine their position in a proceeding so important to their future. Such reasoning is not illogical. It would have equally been open to NCAT to afford greater weight to Mr Tyrer’s evidence because of his long history with the family. Generally the weighing of expert evidence is exclusively a matter for the tribunal of fact, which in this case was NCAT. Otherwise particular (c) is misconceived. It is self-evident that Mr Tyrer’s opinions were not conclusive. It was ultimately NCAT’s function to assess risk.

121. Particular (d) concerns the finding at [70] of NCAT’s reasons that the “event” occurred. Leaving aside the complaints that have already been addressed and upheld, there was evidence before NCAT capable of supporting a finding that the plaintiff deliberately touched his eldest grandson in his pubic region. Four matters should be noted. First, there was the plaintiff’s act in touching the eldest grandson itself. Second, there was the plaintiff’s wife’s statement to the police dated 1 January 2000 (see [46]). As stated, she recalled being woken by the plaintiff early in the morning and observing that he was crying. She also said that she feared that “it had something to do with [the plaintiff] doing [something] sexual” to the eldest grandson. Third, both the plaintiff’s wife’s statement and a statement from another family member record the eldest grandson stating that his grandfather had touched him inappropriately. Fourth, Mr Tyrer recorded the plaintiff’s wife telling him that her eldest grandson “knew it was wrong and told me, just like I’d always taught him”.

122. Counsel for the plaintiff submitted that there was a significant body of contemporaneous evidence suggesting that the touching of the eldest grandson was a mistake. This is undoubtedly correct. It includes the statement made by the plaintiff to the police officer noted above at [45], the statement made to his wife noted at [46], and the fact that when the plaintiff’s wife went to bed the eldest grandson was asleep elsewhere. However, the existence of competing evidence is not relevant to this ground. The inference that the plaintiff deliberately touched his grandson was open, even though there may be competing inferences. That conclusion suffices to dispose of this ground of review.

123. Particular (e) refers to that part of [70] of NCAT’s reasons which refers to the evidence of the eldest grandson being that “he now believes what happened was a mistake” but that “is not how it was regarded at the time”. The submissions in support of this particular assumed that this was a reference to a change in perception on the part of the eldest grandson. However, as noted in [76], the reference as to how it was regarded at the time did not concern the eldest grandson’s perception but the attitude of others including the plaintiff’s wife and the child protection services. They both treated it with the utmost seriousness. This aspect of NCAT’s reasons neither lacked logic nor evidentiary support. This complaint is not made out.

124. Particular (f) refers to the following passage from NCAT’s reasons (at [72]):

“As I have noted, the applicant’s offending conduct in the 80’s and early 90’s appear to have been committed while he was intoxicated. … And the inference is that the applicant continued to drink heavily thereafter [1988]. The applicant asserts he had not drunk since 1 January 2000. Other than this own assertion, the applicant has given no evidence explaining how he reduced his alcohol intake. The [eldest grandson] said that to the best of his knowledge the applicant has not drunk since the January 2000 incident. This evidence was not challenged, but the basis of his knowledge is not explained. In any event, I accept that the applicant does not consume alcohol to the extent he did previously. However, as pointed out by Mr Tyrer, this remains a risk factor for the applicant – what is not known is the level of that risk.” (emphasis added)

125. The submissions in support of this complaint noted that the plaintiff stated he had not consumed alcohol since 2000 and there was no evidence to suggest he had. It was contended that NCAT had nevertheless found that he consumed some alcohol since 2000 although his intake was reduced, yet there was no evidence to support that finding.

126. The contention misstates the effect of NCAT’s finding. As the tribunal of fact, NCAT was entitled to accept or reject the plaintiff’s evidence in whole or in part. In his case NCAT only accepted his evidence that he ceased drinking in part, as it was entitled to do. In circumstances where NCAT found that he drank heavily until 2000 there is no lack of evidence or logic in NCAT expressing itself as it did in the above passage.

127. I reject ground 4 of the amended summons.

Relief

128. It follows that NCAT’s decision should be set aside and the matter remitted to NCAT to be determined according to law.

129. There remains the question of costs. The plaintiff succeeded on two bases. One of them was only first raised in an amendment made at the hearing of these proceedings, and was partly established by a concession from Counsel for the Guardian. The other ground was pleaded in the original summons but was only tangentially addressed in the written submissions filed prior to the hearing. The bulk of the grounds failed. In those circumstances I will make no order as to costs. If either party seeks to vary that order they can apply to vary it within the time provided for in Uniform Civil Procedure Rule (“UCPR”) 36.16(3A).

130. Accordingly the Court orders that:

1. Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010, the name and address of the plaintiff and any child referred to in the evidence before the Supreme Court or the Civil and Administrative Tribunal and the name and address of any other person whose publication would identify their names and addresses not be published without the leave of the Court;

2. The plaintiff be referred to as "BKE".

3. The order made by the NSW Civil and Administrative Tribunal on 31 October 2014 refusing the plaintiff's application for an enabling order under the Child Protection (Working with Children) Act 2012 be set aside; and

4. The NSW Civil and Administrative Tribunal rehear the plaintiff's application according to law.

5. There be no order as to costs.

************

Decision last updated: 11 May 2015