BVT v Children's Guardian (No 2) - [2016] NSWCATAD 266

Civil and Administrative Tribunal

New South Wales

Case Name:	BVT v Children’s Guardian (No 2)
Medium Neutral Citation:	[2016] NSWCATAD 266
Hearing Date(s):	2 November 2016
Date of Orders:	22 November 2016
Decision Date:	22 November 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Anderson, Senior Member
Decision:	The application filed 6 October 2016 for the proceedings to be heard by a Tribunal Member other than Senior Member M Anderson and General Member O’Halloran is refused.
Catchwords:	ADMINISTRATIVE LAW – application for an enabling order under section 28 Child Protection (Working with Children) Act 2012 – prior refusal of application – appeal to Supreme Court allowed on an error of law – remittal of application by Supreme Court to be determined according to law – error of law identified by the Supreme Court - no order made by Supreme Court as to constitution of the Tribunal to rehear the application – original hearing by two member panel - whether an apprehension of bias is present - whether the matter should be heard by different Members of the Tribunal if no apprehension of bias found – no apprehension of bias present – matter may be heard by the named Members of the Tribunal subject to availability.
Legislation Cited:	Child Protection (Working with Children) Act 2012 (NSW)
Cases Cited:	Attorney General of New South Wales v Lucy Klewer [2003] NSWCA 295 Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 Barakat v Goritsas (No 2) [2012] NSWCA 36 British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283 BVT v Children’s Guardian [2016] NSWCATAD 12 BVT v Office of the Children’s Guardian [2016] NSWSC 1169 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Fitzgerald v Director of Public Prosecutions (1991) 24 NSWLR 45 Isbester v Knox City Council (2015) 89 ALJR 609 Johnson v Johnson (2000) 201 CLR 488 Jorgensen v Shorten [2016] NSWSC 1631 McGuirk v Director General, Attorney General's Department (GD) [2007] NSWADTAP 38 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 Raybos Australia Pty Limited v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272 Re JRL; Ex p CJL (1986) 161 CLR 342 Slavin v Owners Corporation Strata Plan 16857 [2006] NSWCA 71 Wentworth v Graham [2003] NSWCA 240
Category:	Procedural and other rulings
Parties:	BVT (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: G Moore (Applicant) J Harris (Respondent) Solicitors: Legal Aid NSW (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	1610559
Publication Restriction:	Disclosure of the name of the applicant and the name of any alleged victim or child referred to in the material before the Tribunal is prohibited. Note: the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

This is an application to recuse members of the Tribunal in the rehearing of the application for an enabling order…

Grounds of appeal

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

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

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

Consideration

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

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

Keep reading for free

Create a free CaseChat account to read BVT v Children's Guardian (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] NSWCATAD 266
Decision Date: 22 November 2016

CaseChat Overview and Summary

The case of BVT v Children's Guardian (No 2) involved an application for an enabling order under the Child Protection (Working with Children) Act 2012. The applicants, BVT, sought to have their case reheard by different members of the Tribunal after their initial application was refused. The application was heard by the Supreme Court of Victoria, which had previously allowed an appeal on the basis of an error of law. The Supreme Court did not, however, make any order regarding the constitution of the Tribunal to rehear the application.

The legal issues before the court were whether an apprehension of bias was present in the original hearing of the case and whether the matter should be heard by different members of the Tribunal if no apprehension of bias was found. The applicants argued that the Tribunal's members were biased due to their prior involvement in similar cases, while the Children's Guardian maintained that no bias was present and that the matter could be heard by the same Tribunal members.

The court found that no apprehension of bias was present and that the matter could be heard by the named members of the Tribunal, subject to their availability. The court noted that the applicants had not provided any evidence to support their claim of bias, and that the Tribunal's members had acted impartially in their previous decisions. The court also noted that the Supreme Court had not made any order regarding the constitution of the Tribunal to rehear the application, and that it was therefore up to the Tribunal to determine the composition of the panel. The court concluded that the matter could be heard by the same Tribunal members, provided they were available to do so.

The court's final order was that the application filed on 6 October 2016 for the proceedings to be heard by a Tribunal member other than Senior Member M Anderson and General Member O'Halloran was refused. The matter may proceed before the Tribunal with the named members, subject to their availability.

Orders

Orders of the court

The application filed 6 October 2016 for the proceedings to be heard by a Tribunal Member other than Senior Member M Anderson and General Member O’Halloran is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.