BKZ v The Children’s Guardian

[2014] NSWCATAD 230

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

BKZ v The Children’s Guardian [2014] NSWCATAD 230

Hearing dates:

3 December 2014

Decision date:

03 December 2014

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Hon G Mullane ADCJ, Principal Member

Decision:

1. The tribunal refuses to extend the time for filing of the review application filed out of time on 7 August 2014; and

2. The review application is dismissed.

3. The applicant has leave to make an oral application for an extension of time to file and serve an application under section 28 of the Child Protection (Working with Children) Act 2012; and

4. The time for filing the application under section 28 is extended to 4pm on 10 December 2014.

Catchwords:

Application for extension of time to file Application for a Review of Decision – No prospect of success of Review application – extension of time refused.
Application for extension of time to file Application for Enabling Order – Reasons for delay – Prospects of success – Granted

Legislation Cited:

Child Protection (Working with Children) Act, 2012
Crimes Act, 1900
Interpretation Act, 1987

Cases Cited:

Gallo –v- Dawson [1990] HCA 30

Category:

Principal judgment

Parties:

BKZ (Applicant)
The Children’s Guardian (Respondent)

Representation:

Counsel:
P Lawson ( Applicant)

Solicitors:
Crown Solicitors Office (Respondent)

File Number(s):

1410422

Publication restriction:

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

Reasons for decision

EX TEMPORE

THE APPLICATION TO EXTEND TIME FOR FILING THE APPLICATION FOR REVIEW OF THE DECISION OF THE CHILDREN’S GUARDIAN

1. The application before the tribunal today is an application for a review of a decision of the Children’s Guardian refusing to issue a working with children check clearance to the Applicant.

2. As a result of two convictions of indecent assault on a male child in May 1974, the Applicant became a disqualified person under the Act and the decision of the Children’s Guardian is a decision required to have been made under section 18 of the Child Protection (Working With Children) Act 2012 (“the Act”), which provides that the Children’s Guardian must not grant a working with children check clearance “ to the following persons” and it includes “a person convicted before, on or after commencement of this section of an offence specified in schedule 2”, if the offence was committed as an adult.

3. Both the offences were under section 81 of the Crimes Act 1900, such offences are specified in schedule 2 and at the time of the offences the applicant was 22 years of age.

4. Section 27 of the Act says an application for a review should be lodged within 28 days after notice of the decision was given to the person. The notice is dated 2 June and applicant says he received it on 13 June, so, if it was sent on 2 June then in the absence of any contrary evidence, under s.76 of the Interpretation Act 1987 it is deemed that he would have received it, by post, by 6 June. The review period would have expired on 1 July. But accepting applicant’s evidence that he received it on 13 July, then the review period would have expired on 8 July.

5. So, using his figures, the review application was 30 days out of time. Section 41 of the 2013 gives the tribunal power to extend such times. There is extensive caselaw on what is required in order to satisfy a tribunal or a court that a statutory time limit should be extended where the tribunal or court has power to do that.

6. The explanation for the delay provided by the applicant is:

“Received letter on 13 June and attempted to find information on website and couldn’t find. Tried a couple of times then put aside unfortunately.”

and that is the extent of the explanation for the delay. The delay, of course, was greater than the appeal or review period of 28 days, so it is a substantial delay.

7. The test that has been adopted by the courts as a result of the dicta of McHugh J in Gallo v Dawson is that a time limit should not be extended unless the court or tribunal is satisfied that it is necessary to extend the time in order to avoid an injustice to the applicant. The relevant matters to be considered in such an application include the prospects of the applicant succeeding in the application that is proposed to be filed pursuant to an extension of time.

8. This is a review application in respect of a decision to, first of all, find that the applicant was a disqualified person and, secondly, find that the act required that he be refused the clearance. Those were the decisions made by the Children’s Guardian.

9. In respect of the applicant being a disqualified person, there is no dispute about that. The applicant does not dispute that the convictions were under section 81 of the Crimes Act 1900 or that they are offences specified in schedule 2 to the Act or that they are therefore disqualifying offences under section 18 of the Act. There is no dispute that the Children’s Guardian was required to refuse to issue the certificate. His letter advising the applicant of that is attached to the application. The applicant raises no issue about that.

10. So the applicant has not shown that there is any prospect of the review application being successful and the applicant obtaining a result different to the decision of the Children’s Guardian or more favourable to him than the decision of the Children’s Guardian. There is no evidence that his review application, has any merit.

11. Accordingly, that factor is decisive because if the application has no merit there is no useful purpose to be served by extending the time for it to be entertained.

12. So, the orders will be:

1. The tribunal refuses to extend the time for filing of the review application filed out of time on 7 August 2014; and

2. The review application is dismissed.

APPLICATION FOR AN EXTENSION OF TIME TO FILE AN APPLICATION FOR AN EANBLING ORDER UNDER SECTION 28 OF THE ACT

13. The applicant is granted leave to make an oral application for leave to file an enabling application under section 28 of the Child Protection (Working with Children) Act 2012, out of time.

14. The delay from 13 June, when the applicant says he received the letter advising of the Children’s Guardian’s refusal to issue a clearance, is now nearly five months and that is a substantial delay relative to the period of 28 days, which was permitted under the legislation and expired on 11 July.2014.

15. As for the explanation of the applicant for the delay, he said he was late in filing because it did not affect his employment directly and so he did not give attention to the matter. That accords with what he said in the application. He said that he works in the office of an organisation that places children in residential care and he is the accountant in the office and does not have direct dealings with children.

16. 1 But he said that when his application was refused eventually he decided to make the application and that he had taken some time making up his mind   

17. Then he said there was further delay because he used the wrong application form, which is the review application form. He says that that occurred on advice, by telephone, from the tribunal registry and also he probably also was influenced by the letter from the Children’s Guardian notifying him of the decision because it seemed to confuse the two concepts of a review and an application for enabling orders.

18. 3 But he says, though, that he knew that the time limit was 28 days when he received the letter of 13 June. It is obviously stated on the document, that the review or enabling application, whatever it was, had to be filed within 28 days of him being given notice of the decision.   

19. It is relevant what legal advice and what legal representation the applicant had and he has not provided evidence as to what legal advice he obtained or what legal representation he has had. But it appears he had no legal representation or advice before he lodged the application on 7 August 2014, on the wrong form.

20. Of course, the onus was on him to disclose relevant matters if he has had legal advice or legal representation, particularly where it has been bad advice or incorrect advice.

21. He also says that when he used the wrong form, he obtained that advice from the clerical staff at NCAT by telephone and that he says that his mistake there was compounded by the correspondence from the tribunal where it described the application as a review application and an application for an enabling order. That letter is attached to his application.

22. The extension of time is not opposed by the Children’s Guardian.

23. One of the matters the tribunal must take into account is the prospects of success of an application if the time is extended. Obviously, a very major factor is the fact that it is 40 years since the offences and there have been no subsequent charges or conviction of the applicant for any similar offence or associated offence or, indeed, any other offence that comes within the schedule.

24. It does not assist the applicant that there is very little material in support of his application. His statement that he has provided is very short, it is lacking in any detailed recollection of the offences or of the circumstances of the offences or any explanation. It is lacking any demonstrated insight into why the offences occurred and in 40 years since the incidents one might have thought that he would have given it some consideration and been able to tell the tribunal why he thinks it happened.

25. It is lacking on any detail of the counselling he received. For example, it does not disclose whether it was done by a nurse, a psychologist or a psychiatrist. There is no evidence from Shortland Clinic records about the counselling (which he could have subpoenaed). There is no expert report by a psychiatrist or psychologist giving an assessment of the risk that he poses to children.

26. And, on the other hand, the offences were very serious. The victims were only 10 years of age, the applicant was 22 and the District Court sentenced the applicant to 18 months hard labour on each of the offences and suspended those sentences on him entering into a good behaviour bond and subjecting himself to supervision by the Probation and Parole Service and a non-parole period of six months.

27. It does appear, though, from the material that with legal representation and some expert evidence on the question of what risk he now poses to children, the application for an enabling order could have prospects of success. Overall, there is a prospect of injustice to the applicant if additional time is not granted. I say that particularly because of the confusion between the review application and the application for an enabling order, which is ultimately his responsibility because it is obviously his responsibility to attend to his application and to do it properly, but there would not be any injustice to him if the time is limited to seven days to file and serve an application for an enabling application.

28. The orders, therefore, will be:

(3) The applicant has leave to make an oral application for an extension of time to file and serve an application under section 28 of the Child Protection (Working with Children) Act 2012; and

(4) The time for filing the application under section 28 is extended to 4pm on 10 December 2014.

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

Registrar

Decision last updated: 17 February 2015