BVT v Office of Children's Guardian

[2017] NSWSC 1763

Supreme Court

New South Wales

Medium Neutral Citation:	BVT v Office of Children’s Guardian [2017] NSWSC 1763
Hearing dates:	6 September 2017
Date of orders:	15 December 2017
Decision date:	15 December 2017
Jurisdiction:	Common Law
Before:	Beech-Jones J
Decision:	(1) The appeal against the decision of the New South Wales Civil and Administrative Tribunal in BVT v Children’s Guardian (No 3) [2017] NSWCATAD 111 be allowed; (2) The decision of the New South Wales Civil and Administrative Tribunal in BVT v Children’s Guardian (No 3) [2017] NSWCATAD 111 refusing the plaintiff’s application for an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 filed 17 April 2015 be set aside; (3)   The plaintiff’s application for an enabling order be remitted to the New South Wales Civil and Administrative Tribunal for determination in accordance with law; (4)   The Plaintiff’s amended summons be otherwise dismissed; and (5)   The defendant pay the plaintiff’s costs of the proceedings.
Catchwords:	ADMINISTRATIVE LAW – Child Protection (Working with Children) Act 2012 – application for enabling order – applicant convicted of sexual assault against adult in 1973 – no offences since 1980 – seeks clearance certificate to care for step-granddaughter – application previously refused by NCAT but set aside on appeal – same Senior Member allocated to hear matter – apprehension of bias – Senior Member previously found applicant posed a risk to children – rejected applicant’s credit – declined to recuse himself – apprehended bias established – apprehension of bias affected NCAT decision as only two members made decision – NCAT referred to absence of applicant engaging in pro-social behaviours – alleged involved taking into account irrelevant considerations – failure to afford procedural fairness – no notice given of intention to rely on absence of pro-social behaviour –applicant could not reasonably anticipate it would be relied upon – alleged failure to provide adequate reasons – not established –decision set aside – attempt to separately appeal decision of Senior Member to refuse to disqualify themselves – appeal futile – relief refused
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Working with Children) Act 2012, ss 18, 27, 28, 29, Sch 3 Civil and Administrative Tribunal Act 2013, ss 5, 9, 13, 27, 31, 38, 46, 62, 83, Sch 3 Court Suppression and Non-publication Orders Act 2010, ss 7, 8 Supreme Court Act 1970, s 69 Uniform Civil Procedure Rules 2005, r 36.16
Cases Cited:	Absolon v NSW TAFE [1999] NSWCA 311 Australian Broadcasting Tribunal v Bond (1990)170 CLR 321; [1990] HCA 33 Ballantyne v Workcover Authority of NSW [2007] 5 DDCR 97; [2007] NSWCA 239 Barton v Walker [1979] 2 NSWLR 740 BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126 BHY v Children’s Guardian [2015] NSWCATAD 91 BKE v Office of Children’s Guardian [2015] NSWSC 523 British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2 BVT v Children’s Guardian [2016] NSWCATAD 12 BVT v Children’s Guardian (No 2) [2016] NSWCATAD 266 BVT v Children’s Guardian (No 3) [2017] NSWCATAD 111 BVT v Office of the Children’s Guardian [2016] NSWSC 1169 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 237; [2000] HCA 63 Insurance Australia Ltd t/a NRMA Insurance v Milton [2016] NSWCA 156 Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 Italiano v Carbone [2005] NSWCA 177 IW v City of Perth (1997) 191 CLR 1; [1997] HCA 30 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Livesey v The New South Wales Bar Association (1983) 151 CLR 288; [1983] HCA 17 McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209 Michael Wilson & Partners v Nicholls (2011) 244 CLR 427; [2011] HCA 48 Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 Public Service Association and Professional Officers’ Association Amalgamated Union (NSW) v Secretary of the Treasury [2014] NSWCA 112 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22; SL v Secretary, Department of Family and Community Services [2016] NSWCA 124 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 SS v Department of Human Services (NSW) [2010] 12 DCLR(NSW) 29; [2010] NSWDC 279 T v H [1985] NSWSC, Unreported 19/12/1985 Waqa v Technical and Further Education Commission [2009] NSWCA 213 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43
Category:	Principal judgment
Parties:	BVT (Plaintiff) Office of Children’s Guardian (Defendant)
Representation:	Counsel: Ms T Stevens (Plaintiff) Mr J Harris (Defendant)   Solicitors:  Legal Aid NSW (Plaintiff) Crown Solicitor’s Office (Defendant)
File Number(s):	2017/133029
Publication restriction:	Order made under s 7 of the Court Suppression and Non-publication Orders Act 2010 prohibiting the publication or other disclosure of the name and identity of the plaintiff, his partner, the child referred to in the case, and the name and identity of the victim of the 1973 offence. These orders are to apply throughout the Commonwealth
Decision under appeal	Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: BVT v Children’s Guardian (No 2) [2016] NSWCATAD 266; BVT v Children’s Guardian (No 3) [2017] NSWCATAD 111 Date of Decision: 6 April 2017 Before: Senior Member Anderson and General Member Royner File Number(s): 2016/378319; 2016/1610559

Judgment

1. In April 2015 the plaintiff (“BVT”) applied to the NSW Civil and Administrative Tribunal (“NCAT”) for an “enabling order” under s 28 of the Child Protection (Working with Children) Act 2012 (the “Working with Children Act”) to enable him to resume unsupervised contact with his step-granddaughter (“C”) .

2. On 13 January 2016, NCAT, constituted by a “senior member” and a “general member” refused that application (BVT v Children’s Guardian [2016] NSWCATAD 12; “BVT (No 1)”). BVT appealed this decision to this Court pursuant to cl 17(1)(a) of Schedule 3 to the Civil and Administrative Tribunal Act 2013 (“NCAT Act”) which allows for an appeal on a “question of law”. On 23 August 2016, Adamson J allowed the appeal, set aside NCAT’s decision and remitted BVT’s application for an enabling order to NCAT “for determination in accordance with law” (BVT v Office of the Children’s Guardian [2016] NSWSC 1169 at [84]).

3. On the remittal of the application to NCAT the matter was allocated to be reheard by the same Senior Member who decided BVT (No 1) (the “Senior Member”) and a different general member. On 22 November 2016, the Senior Member published reasons for refusing an application made by BVT for him to recuse himself on the grounds of apprehended bias (BVT v Children’s Guardian (No 2) [2016] NSWCATAD 266; “BVT (No 2)”).

4. On 14 December 2016, NCAT, constituted by the Senior Member and the (different) general member, heard the application for an enabling order. On 6 April 2017, they published joint reasons for refusing the application (BVT v Children’s Guardian (No 3) [2017] NSWCATAD 111; “BVT (No 3)”).

5. BVT appeals the decision in BVT (No 3) on a question of law pursuant to cl 17(1)(a) of Schedule 3 to the NCAT Act. He also appeals from the decision in BVT (No 2) and, to the extent it is permissible and necessary, seeks leave to appeal from that decision. For the reasons set out at [106] these applications are futile and it is unnecessary to decide whether an appeal is permissible from BVT (No 2) and, if so, whether leave is required.

6. The grounds of appeal from BVT (No 3) are that the Senior Member was affected by apprehended bias and that, in deciding BVT (No 3), NCAT did not provide adequate reasons, took into account an irrelevant consideration and denied BVT procedural fairness.

7. Ultimately, three matters were relied on to demonstrate the apprehension of bias on the part of the Senior Member, namely, the manner in which the Senior Member questioned BVT at the hearing that preceded BVT (No 1), the adverse findings made against BVT in BVT (No 1) and the similarity between some of the findings in BVT (No 3) and BVT (No 1) [1] . To address this complaint it is necessary to provide a detailed discussion of the course of the hearings in NCAT and its decisions although, as I will explain, the reliance on the findings in BVT (No 3) was misconceived. Nevertheless, for the reasons set out below, I am satisfied that that complaint is made good as is the complaint that there was a denial of procedural fairness by NCAT. The balance of the complaints are rejected.

   1. Plaintiff written submissions at [37].

Non-Publication Orders

8. Throughout the course of the proceedings in NCAT and before Adamson J, orders were made prohibiting the publication or broadcasting of the name of the plaintiff, his partner and her grandchild (ie, C) and requiring that the plaintiff be referred to as “BVT”. At the hearing of these proceedings, I made an order under s 7 of the Court Suppression and Non-Publication Orders Act 2010 to the same effect. I did so because I was satisfied that publication of those matters was likely to lead to an identification of C and that it was in the public interest to avoid undue distress to her (s 8(1)(e)). This concern outweighs the public interest in “open justice” to the extent that that is served by her identification (s 8(1)(e); see BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126 at [3] per Adamson J).

9. During the hearing I also made an order under s 7 of the Court Suppression and Non-publication Orders Act that the name and identity of the victim of the sexual assault referred to in [14] not be published on the grounds stated in s 8(1)(e) of that Act. Although her identity appears to have been disclosed in published decisions I was satisfied that it is in the public interest that victims of sexual assault not be exposed to the potential trauma that would arise from their being identified as a result of publicity being given to a crime of sexual violence committed against them no matter how long ago it occurred (s 8(1)(e)).

Legislative Scheme

10. I described the legislative scheme governing the granting and refusing of clearance certificates and the making of enabling orders under the Working with Children Act, in BKE v Office of Children’s Guardian [2015] NSWSC 523 at [8] to [35] (“BKE”). I will not repeat that discussion. It should be read together with this judgment. It suffices to state that, in determining BVT’s application, NCAT was considering the exercise of the power conferred by s 28(1) to make an enabling order and the power conferred by s 28(6) to grant a clearance. In respect of each power, NCAT was obliged to consider the criteria specified in s 30(1) and to determine whether BVT had displaced a presumption that he posed “a risk to the safety of children” (s 28(7); see BKE at [26] to [33]).

11. I noted earlier that the decisions in BVT (No 1) and BVT (No 3) were made by NCAT constituted by a senior member and a general member. Section 9 of the NCAT Act identifies five classes of members of NCAT namely, the President, Deputy Presidents, Principal Members, Senior Members and General Members.

12. To be appointed a senior member a person must either be an “Australian lawyer” of at least seven years standing or, in the opinion of the person making the appointment, be someone who has “special knowledge, skill or expertise” in relation to any one or more classes of matters in respect of which NCAT has jurisdiction (NCAT Act, s 13(5)). A person is qualified to be a general member of NCAT if, in the opinion of the person making the appointment, they are someone who has “special knowledge, skill or expertise” in relation to any one or more classes of matters in respect of which NCAT has jurisdiction or if they are considered capable of representing the public (or a sector of the public), or a particular organisation, body or group of persons (or class of organisations, bodies or groups of persons), in relation to any one or more classes of matters in respect of which NCAT has jurisdiction (NCAT Act, s 13(6). Beyond those potential differences in the qualifications of senior members and general members, there is nothing in the NCAT Act to suggest that, where NCAT is constituted by a senior member and a general member, one or other member has any greater or lesser role in the decision-making process.

13. Section 27(1)(d) of the NCAT Act provides that, in a proceeding such as that initiated by BVT, NCAT is to be constituted by one or more “Division members of the Division” to which the function of dealing with the proceedings is allocated. Section 3(1) of Schedule 3 to the NCAT Act allocates proceedings under the Working with Children Act to the Administrative and Equal Opportunity Division.

Background

14. The events that gave rise to the application for a clearance certificate and the decision to refuse an enabling order were set out by Adamson J at [2016] NSWSC 1169 (at [15] to [22]) as follows:

“15. Following his plea of guilty, the plaintiff was convicted on 8 June 1973 of an offence under s 65 of the Crimes Act of ‘assault with intent to rape’. The offence was committed on 16 March 1973 when the plaintiff was 18 and the female victim was 19. The plaintiff was sentenced to a term of imprisonment of 5 years with a non-parole period of 18 months.

16.   The plaintiff worked as a labourer and on farms for most of his life until his retirement at the age of 55. He drank alcohol heavily on a daily basis from the age of 15 until about 2005, except for periods spent in prison. He did not seek professional help for alcohol abuse but stopped drinking in 2005 when his general practitioner advised him that it would otherwise affect his life expectancy.

17   The plaintiff was married aged 21 and divorced aged 26. Subsequently, he met his current partner, D, with whom he has now been in a relationship for 26 years. The plaintiff helped to raise three of D’s children.

18    D’s granddaughter, C, who was born in 2009, was placed under the parental responsibility of the Minister. The plaintiff and his partner did not find out about C (who was the daughter of D’s son) until she was two years old. They sought to have her placed in their care. As part of their application, in June 2012, Alison Kearns of Assessments Australia conducted an assessment and recommended that they be considered as authorised carers. However, it was decided that C ought remain with her existing carer, with whom she had been living since she was nine months old and to whom she had formed an attachment. From January 2013 the plaintiff and D provided respite care for C, including overnight contact.

19   On 15 April 2013 Family and Community Services received a report that the plaintiff had hit C. C was interviewed and stated that the plaintiff hit her with a spoon on more than one occasion. However, Family and Community Services did not consider there to have been a sufficiently clear version given by C. There were no apparent injuries and no further action appears to have been taken. The material also contains an allegation that “Nan” (the plaintiff’s partner, D) hit C over the head. D also reported that C told her that her mother hit her with a spoon.

20   In about October 2014 the plaintiff was informed by Family and Community Services that they would no longer be managing C and that she would be managed by the Tamworth Armidale Aboriginal Children’s Service. The transfer of responsibilities appears to have occurred in December 2014. When the plaintiff went to the usual changeover location to meet C just after Christmas 2014, C was not there. The plaintiff later discovered that the Tamworth Armidale Aboriginal Children’s Service had decided that he would no longer be permitted to have unsupervised contact with C unless he could obtain a Clearance.

21 The plaintiff applied to the Children’s Guardian for a Clearance under s 13(1) of the Child Protection Act. As he was a disqualified person because he had been convicted in 1973 of assault with intent to rape (an offence specified under Sch 2 of the Child Protection Act), the Children’s Guardian was obliged to refuse the Clearance. Overnight contact between C and D and the plaintiff continued until 1 January 2015, including after the Children’s Guardian refused the plaintiff a Clearance. Since January 2015 then the plaintiff has seen C on a supervised basis.

22 On 17 April 2015 the plaintiff applied to the Tribunal for an enabling order pursuant to s 28(1) of the Child Protection Act. The Tribunal extended time for such an application to be made.”

15. To this chronology I would add that BVT’s application for a clearance certificate was refused by the Children’s Guardian on 20 November 2013. Given BVT’s conviction that refusal was mandatory (Working with Children Act, s 18(1)).

16. Even though the events that triggered BVT’s application concerned the report made in 2013 concerning C, that matter barely featured in either BVT (No 1) or BVT (No 3). Instead, NCAT focused on the circumstances of the offence committed in 1973 (the “index offence”) and its present relevance to the risk that BVT posed to children.

The First Hearing

17. As noted the first ground of review in relation to BVT (No 3) is that there was a reasonable apprehension of bias in the form of prejudgment on the part of the Senior Member who joined in that decision.

18. Counsel for BVT, Ms Stevens, relied on aspects of the questioning of witnesses by the Senior Member in the hearing that took place prior to the decision in BVT (No 1) (the “first hearing”), as well as certain findings made in BVT (No 1) and BVT (No 3) as raising an apprehension of bias in the form of pre-judgment on the part of the Senior Member in deciding BVT (No 3). To address her contention it is necessary to outline the course of the hearing and the findings made in BVT (No 1), BVT (No 2) and BVT (No 3) from the perspective of the “hypothetical reasonable observer” observing the hearing and reading the decisions in BVT (No 1) and BVT (No 2) (Johnson v Johnson (2001) 201 CLR 488; [2000] HCA 48 at [12]).

19. Tendered at the first hearing was a statement of police facts that was obtained from the District Court which had custody of the file of the Court of Quarter Sessions relating to BVT’s plea of guilty to the index offence (see [2016] NSWSC 1169 at [24]). The documents produced included a record of interview signed by BVT and read out to him. In that record of interview BVT said that he was “mad with the grog ... I just wanted to frighten her so that I could root her” and that he used a pocket knife with the medium blade open to threaten the victim. The documents produced also included statements of the victim, her boyfriend and another witness. In her statement the victim recalled, inter alia, that the offender stated “I’ll kill you if you don’t let me root you” and she replied “I’d rather you kill me than rape me” [2] .

    2. Ex ML 1, Tab 15 at p 25.5.

20. The material produced also included a document said to be the police facts. The latter recorded the following [3] :

“FACTS: - SIGNED RECORD OF INTERVIEW … about 10.25pm on Friday 16.3.73 [the victim] and [her boyfriend] were walking from Newtown Railway Station when the accused called [her boyfriend] “a four eyed cunt”. [The victim and her boyfriend] walked into King St, Newtown, the accused and another youth followed them. The accused produced a small knife and said ‘see what I’ve got here’. [The victim’s boyfriend] ran to his home nearby for help, then ran to Newtown Police Station. [The victim] walked on, with the accused and friend conversing with her. In Station St, the accused pushed her up against a wall, with one hand holding her hand and the other around her throat. He put his hand down the front of her blouse and ripped the front of it and fondled her breasts. Accused said “I’ll kill you if you don’t let me root you”. The accused then placed the knife at her throat : – Ordered her to take her pants off, she refused, he placed his hands on her crotch from the outside of her trousers. He then asked for her money, she handed over about 30 cents. A Mr Masr came to the assistance of the girl and the accused (and friend) ran off. Later arrested.”

3. Ex ML 1, Tab 15 at p 12.

21. Adamson J reviewed the material concerning the charges that was placed before NCAT during the first hearing in detail [4] . Her Honour noted that there was no material provided such as a transcript of proceedings or sentence remarks from which the “facts on the basis of which [BVT] was sentenced” could be determined [5] .

    4. [2016] NSWSC 1169 at [23] to [31].

    5. [2016] NSWSC 1169 at [31].

22. Also tendered from the Court file was a report from a psychiatrist, Dr Robbie, dated 5 June 1973 concerning BVT. The report included the following [6] :

“He wasn’t particularly interested in discussing the offence, and he thinks he was just drunk. He gives the impression that it is all past history now and that there is little point in getting upset about it all, as his future will be taken care of for some considerable time. This impression of unconcern that he gives is I am sure only a superficial one; underneath I think he is fairly alarmed. I could not get through to him however.

In view of his past history of aggressive propensities I found him curiously placid and unaggressive. It may be that he has more than the ordinary drive and that this has been misinterpreted throughout his childhood, turning him into a rather angry person who has trouble accepting a powerless Aboriginal role. This is surmise however. On the surface he would appear to be a poorly educated and lowish normal intelligence (I could be wrong about this) Aboriginal of disadvantaged background, who has a long history of aggressiveness and instability, and who has shown little evidence recently of settling down. Indeed he has been out of work and drinking. He did not seem particularly disturbed or menacing when I saw him however, and I assume that alcohol was substantially involved in his offense. Despite what has happened he may not be quite the severe personality disorder that his history suggests, but I cannot be confident in this.”

6. [2016] NSWSC 1169 at [29].

The Index Offence

23. An affidavit from BVT was read at the first hearing in which he stated that he was “drunk at the time” of the commission of the index offence, that he did not know the victim or how old she was. He stated that, “I have tried hard to remember the details of the offence” but that “[a]s hard as I have tried I cannot recall the specifics of what happened that night” [7] . During the first hearing he was briefly cross examined on the circumstances of the offence by Counsel for the Children’s Guardian. He was asked whether the documents obtained from the District Court assisted his recollection, to which he responded, “not really because I was – as I said to you before, I was drunk” [8] . He could not recall telling the victim he had a knife or that he “would kill her if she didn’t let you root her” [9] . He denied that he ever carried a knife [10] .

    7. Ex ML 1 at 115 at [38].

    8. Ex ML 1 at 561

    9. Ex ML 1 at 563.23

    10. Ex ML 1 at 563.35.

24. At the conclusion of the cross examination, BVT was then questioned by the Senior Member. The questioning occupied seven pages of transcript. The bulk of the questions involved the Senior Member putting material to BVT based on the documentary material noted above. In this Court Counsel for BVT, Ms Stevens, relied on some parts of the transcript as supporting the apprehended bias ground. Thus, Ms Stevens referred to the following exchange between the Senior Member and BVT [11] :

    11. Ex ML 1 at 572.

“Q.   So what you’d said in your affidavit is you had trouble remembering what happened but you thought—

A.   Oh yeah.

Q.   –that you followed her from the RSL?

A.   Yeah.

Q.   That’s just not the case is it?

A.   What do you –

Q.   You didn’t follow her from the RSL?

A.   Yes I did.”

25. After this, the Senior Member took BVT through the documentary material referred to above and sought his response. This included the following exchange [12] :

    12. Ex ML 1 at 575.

“Q.   And it’s said by her that she was hit across the face by you, do you remember doing that to her?

A.   No.

Q.   Do you say you didn’t do that?

A.   No.

Q.   You say you didn’t have a knife?

A.   I didn’t have a knife.

Q.   Well how were you going to force her to have sex with you if you didn’t have a knife and you didn’t hit her?

A.   I didn’t hit her.”

26. Ms Stevens contended that this was an example of the rigorous cross-examination conducted of BVT by the Senior Member.

27. Section 46(1) of the NCAT Act enables NCAT to call a witness of its own motion as well as to examine and cross‑examine a witness. The legislative provisions governing NCAT are such that it can be described as a body falling somewhere between a “judicial model” and an “inquisitorial model” for an administrative body (see Italiano v Carbone [2005] NSWCA 177 at [104]ff per Basten JA; BKE at [65]). The necessity for such a body to afford procedural fairness may in some circumstances oblige it to notify a party such as BVT of its concerns about his evidence including by requesting that he attend for cross-examination (NCAT Act, s 38(2)). These statutory provisions form part of the context in which the hypothetical reasonable observer forms judgments about the impartiality or otherwise of the members who constitute NCAT.

28. It follows that, of itself, the fact that the questioning of BVT by the Senior Member included vigorous questioning of the above kind does not give rise to an apprehension of bias. Equally, however, the fact that such questioning occurred and resulted in findings in BVT (No 1) are matters that the hypothetical reasonable observer is taken to be aware of in considering the position of the Senior Member prior to deciding BVT (No 3).

29. Ms Stevens also referred to two further exchanges during the questioning of BVT. In the first, the Senior Member asked two questions of BVT which wrongly asserted that he had told the person who came to the victim’s assistance, Mr Masr, “If you say anymore I’ll kill you” [13] . However, Mr Masr’s statement suggests that it was he who said this to the offender and not vice versa [14] . In the other exchange the Senior Member’s question wrongly assumed that BVT had already “agreed” that if the assault was not “interrupted [he] would have either raped … or killed” the victim [15] . In his evidence BVT never stated that if the assault was not interrupted then he would have, or might have, killed the victim.

    13. Ex ML 1 at 576.

    14. Ex ML 1, Tab 15 at p 28.

    15. Ex ML 1 at 578.15.

30. Ms Steven’s written submissions contended that these questions were “improper” and that this impropriety somehow supported the claim of apprehended bias. The description “improper” was itself unjustified. The questioner simply made a mistake as to the effect of BVT’s previous answers. Such mistakes are not uncommon during cross examination. Beyond reinforcing the finding that the examination was rigorous these complaints do not add to the contention that, prior to the determination of BVT (No 3), there was a reasonable apprehension of bias.

Ms Hare’s Evidence

31. Two reports from a psychologist, Ms Hare, were tendered at the first hearing, one dated 2 September 2015 and the other dated 8 December 2015. Their contents were comprehensively summarised by Adamson J in [2016] NSWSC 1169 at [34] to [41]. In the first report, Ms Hare noted BVT’s expression of remorse for his offence and decision to alter his behaviour after he completed the non-parole period for the index offence [16] . Ms Hare also contrasted BVT’s personal circumstances at the time of the offending with those at the time of her assessment. Ms Hare concluded that BVT posed “an overall low risk of engaging in of sexually offending against a child” and that she was “unable to generate a realistic scenario that would, in [her] opinion, genuinely heighten the risk of [BVT] engaging in sexual offending towards a child in the future” [17] . Ms Hare also concluded that “… the risk to children’s safety that [BVT] presents are commensurate with the risk of any adult member of the community (i.e. a non-offender) harming a child” [18] .

    16. [2016] NSWSC 1169 at [36].

    17. Ex ML 1 at 151.10 to 152.1.

    18. Ex ML 1 at 153.3.

32. As noted by Adamson J [19] , in preparing her first report Ms Hare did not have access to the material from the Court file concerning the index offence but it was provided to her prior to her second report. Having received that material, Ms Hare qualified her assessment of BVT in a limited respect as follows:

“I continue to be of the opinion that he did not harbour attitudes that condoned sexual violence at the time of the offence, but that he was able to overcome any barriers to committing it through his lack of empathy and absence of concern for the consequences on the victim at the time. Based on this, I would add antisocial and narcissistic personality traits as a risk factor at the time of the offence. I continue to be of the opinion that the sexual offence was impulsive and opportunistic; he cannot have known that the victim’s male partner was going to leave her alone whilst he went to seek Police, and as such it seems unlikely that [the plaintiff] was initially following the victim and her partner with the goal of sexually assaulting the victim.” (emphasis added)

19. [2016] NSWSC 1169 at [40].

33. Ms Hare concluded that the material did not change her opinion regarding BVT’s “current risk and protective factors”. Ms Hare stated that she “remain[ed] of the opinion that [BVT] presently poses an overall low risk of engaging in sexual reoffending” [20] .

    20. Ex ML 1 at 158.1.

34. In the first hearing, Ms Hare was cross-examined by Counsel for the Children’s Guardian during which she agreed that, to an extent, BVT had minimised his role in the index offence and said that was due to a number of factors including poor memory and ongoing “guilt and shame that he continues to carry for the offence”. [21] In relation to the narcissistic and anti-social traits referred to in the above passage from her second report, Ms Hare explained that those traits diminish as people such as BVT increase their “lifestyle stability” [22] . Ms Hare stated that with BVT “there’s still some narcissistic traits in there” but they were “not as prominent anymore” [23] . Ms Hare maintained her overall assessment of the risk that BVT posed as expressed in the above passages from her report [24] .

    21. Ex ML 1 at 584.17.

    22. Ex ML 1 at 592.6.

    23. Ex ML 1 at 592.8.

    24. Ex ML 1 at 592.10 to 24.

35. The Senior Member then questioned Ms Hare. The transcript of the questioning occupies eight pages. In light of the findings made in BVT (No 1) and the reliance placed on this material by Counsel for BVT, it is necessary to set out some of the passages in full. In relation to the references to antisocial and personality traits in Ms Hare’s second report, the Senior Member asked as follows [25] :

    25. Ex ML 1 at 593.36+.

“Q.   The antisocial and narcissistic personality traits that you identify as a risk factor at the time of the offence, I heard what you said to Mr Harrison in answer to his questions and I certainly wouldn’t cavil with anything you’ve said, but in terms of the antisocial personality traits, well a common issue I suppose with those type of personality traits is a lack of empathy?

A.   Yes.

Q.   Or an inability to empathise perhaps?

A.   A lack of willingness or a yeah, or sometimes an inability yeah.

Q.   And although there’s been no offending for a period of time, people with as you say antisocial personality traits, tend to mature as they get older?

A.   That’s correct.

Q.   That means they’re less likely to engage in antisocial activities?

A.   That’s correct and--

Q.   But the foundational aspect of their personality doesn’t change that much does it?

A.   It can change inasmuch as quite often when people are younger and engaging in that type of behaviour, they don’t really have any connections with other people that have much depth to them. They can be quite superficial connections with other people and often what we see as people develop lasting partnerships, where they are able to develop emotional intimacy and they have more exposure to that, that we do see a shift in aspects of their personality. I guess it’s also important for me to say that I probably misused the term personality disorder earlier. I don’t believe [BVT] has personality disorder, he demonstrated some traits and when he completed the assessment, the psychometric assessment, he endorsed some traits, but that wasn’t a level [that] would be clear indication of personality disorder. I guess it’s helpful to think of it on a continuum that we’re all somewhere on there. At this far end is personality disorder and I don’t consider at this far end, he’s further down than that and was at the time as well.

…

Q.   My concern is that the combination of anti-social and narcissistic personality traits that were present at the time of the offence, they’re unlikely – particularly the issue of empathy, or lack of empathy – it’s unlikely to disappear over time?

A.   It wouldn’t necessarily completely disappear but it – I guess we have to consider it in the, in the broader picture and there are a lot of people with those types of traits that are very successful, and those traits aren’t necessarily going to lead to offending. What is helpful to think about is what the person’s goals are and what their priorities are, and their understanding of consequences if they were to engage in negative behaviours. When you have narcissistic traits you are very much – you know, you have your own best interests in mind, therefore if you have an understanding that engaging in these type of behaviours is going to undermine your best interests, which might be for in BVT’s case, having access to his step-granddaughter, then people are able to temper their behaviour and behave in a way that’s in line with achieving their goals.

Q.   Just going back a little bit, in terms of the description of both anti-social and narcissistic traits, my understanding from having worked in this area a little while, is that truth is not necessarily something people with those traits grasp with both hands?

A.   Certainly.

Q.   It’s a situational thing and what’s true today might not be what they say is true tomorrow?

A.   That can be the case, yeah.”

36. The Senior Member then questioned Ms Hare on the extract from Dr Robbie’s report noted above (at [22]) as follows [26] :

“Q.   The concern the Tribunal has is that BVT says that he doesn’t remember things--

A.   Mm-hmm.

Q.   --but it’s clear – and you’ve referred to psychiatrist Dr Robbie … saying back in 1973 that his concern about the unconcern, the impression of unconcern, he thought was merely a superficial one?

A.   Mm.

Q.   And underneath he thought he was alarmed, perhaps alarmed about the consequences of his action, going to gaol. But it just seems hard to marry up his lack of memory of specific events and then having been so clear in terms of the interview with the police about what happened, and subsequently just denying that that’s the way it happened. So if I’m being clear about this – pull me up if you’re not understanding what I’m saying – it seems that it’s a convenient lack of memory, both observed by Dr Robbie at that time – that is, he didn’t want to remember perhaps, too much detail, for whatever reason, but significantly the lack of memories about significant issues, ones you would have thought you’d remember about, seems more of a position consistent with anti-social or narcissistic traits. That is, that they don’t want to--

A.   Yeah.

Q.   --- agree with things that they think might be detrimental to their sense of themselves.” (emphasis added)

26. Ex ML 1 at 595.

37. Ms Hare answered this extended comment by disagreeing with the Senior Member’s interpretation of Dr Robbie’s report. Ms Hare stated that she understood Dr Robbie was “saying it was more of a superficial front that BVT was putting on that, you know, this doesn’t really affect him, when underneath he really did understand the effects” [27] .

    27. Ex ML 1 at 595.44.

38. Counsel for BVT submitted that a reasonable observer would conclude from these questions that the Senior Member “may have formed the view that he was looking to disrupt [Ms Hare’s] opinion and put to her various old reports and ask her for comment in a way that was…one side[d]” [28] . I do not accept that submission. On their face, these questions are no more than the Senior Member raising what, at that time at least, may have been some preliminary views with Ms Hare to give Ms Hare (and BVT) the opportunity to respond.

    28. T 06/09/17 p 17.19.

39. However, in light of the findings in BVT (No 1), these passages have relevance to a consideration of the perception of the reasonable bystander considering the position of the Senior Member prior to deciding BVT (No 3) in three respects. First, the bystander would note that during the first hearing the Senior Member was at least ruminating on the possibility that BVT’s present lack of memory of the events surrounding the offence was “convenient”, that is, not genuine. Second the bystander would note that the Senior Member expressed a concern about the presence of anti-social and narcissistic personality traits in BVT. These concerns were reiterated during the submissions of the parties [29] . Third, the bystander would note that Ms Hare steadfastly maintained her opinion of the low level of risk posed by BVT. Thus, Ms Hare said that his anti-social and narcissistic personality traits were “not prominent” [30] and that she stood by “what I had said previously that I believe his risk to children is commensurate with anyone else in the community” [31] .

    29. See [2016] NSWSC 1169 at [48].

    30. Ex ML 1 at 597.1.

    31. Ex ML 1 at 593.34.

BVT (No 1)

40. The first part of the judgment in BVT (No 1) consists of an introduction, a brief statement of the sources of the evidence, the relevant legislation and the applicable principles. At [10], NCAT declared that “a statement contained in these reasons of factual matters is a finding of fact based upon the evidence referred to in these reasons”.

41. The matters referred to in s 30 of the Working with Children Act were then addressed by NCAT commencing with the seriousness of the index offence (s 30(1(a)). In doing so NCAT made the following findings:

“38   The applicant has described in his evidence the circumstances of the offence differently to the description provided by the police. The applicant pleaded guilty to the offence and the police facts are thereby considered to be the proven factual circumstances surrounding the offence.

39   The applicant states that he does not “have a great memory of the offence” which renders him a disqualified person. [The Tribunal then summarised BVT’s recollection of the index offence, the police facts and the history of the criminal proceedings for the index offence and continued…]

42   … Whilst there may be some doubt that the confession of the applicant was accurately recorded in the record of interview, the other witnesses statements were accepted by the Court and apparently by the applicant with the benefit of competent legal advice.

43   The applicant presented to Ms Hare … “as an inconsistent historian” which she considered reflected poor memory rather than a conscious attempt to mislead her: …

44   The applicant told Ms Hare what he recalled about the offence which renders him a disqualified person, … as follows:

‘[The applicant] was able to recall that he was drinking at Newtown RSL, and he noticed the victim at the same location during the evening. He agreed that he thought she was attractive, although he did not approach her during the night. When victim left the RSL, [the applicant] stated that he followed her and “grabbed her” in the doorway of her home. As he did so, she apparently screamed and he stated that this had alerted the police, who attended the scene and he was arrested. [The applicant] was unable to recall any specific sexual thoughts prior to, or during the offence, and he was unsure whether he had been sexually aroused. However, given that he had specifically noted the victim’s physical attractiveness prior to deciding to follow her, it seems realistic to assume a level of sexual intent.’

45   After Ms Hare was given copies of further material provided to the Children’s Guardian she was able to say …:

‘Having reviewed the material, it is clear that [the applicant] provided me an account of the trigger offence that was inconsistent with events outlined in the additional material.’

46   The other witnesses who gave statements at the time did not support the version given by the applicant. There is clear evidence upon which the Tribunal has to rely and it contradicts the stated memory, or lack of memory, of the applicant.

47   Ms Hare slightly revised her opinion concerning the applicant … as follows [the Tribunal set out the passage from Ms Hare’s report noted above ….”

42. The reasons then address the criteria in s 30(1)(b) to s 30(1)(h) before considering the criteria in s 30(1)(i), namely, the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition. This part of the decision includes a discussion of Ms Hare’s evidence and the report of Dr Robbie noted above. Although it is lengthy it is necessary to set out all the references to Ms Hare’s report and NCAT’s concluding paragraph in relation to this criteria:

“67   The applicant relies upon the evidence of Ms Caroline Hare, psychologist who saw the applicant on 24 August 2015 in her office for a period of one hour and 50 minutes.

68   Ms Hare had the applicant complete the Millon Clinical Multiaxial Inventory- Third edition (MCMI-III; Millon et al 2006) which she states in her evidence is an empirically validated and reliable self-report. A surprising feature of that tool is reflected in the opinion formed by Ms Hare after reading the additional material for her second report. In the first report … Ms Hare states at … as follows:

‘[The applicant] endorsed a broad range of problematic personality traits that suggested a level of detachment from others and possible difficulties with empathy, reflecting a generally exaggerated sense of self-importance and feelings of superiority. In the past this likely encouraged him to engage in risk-taking (including illegal) behaviour without particular concern for the consequences or impact upon others. These personality traits tend to manifest in a belief that he is exempt from the conventional rules of behaviour, which perhaps provide some context for his past criminal behaviour, and possibly also for [the applicant’s] absence of remedial action when he was refused the WWCC clearance in 2013. It appears that generally [the applicant] does not invest overly emotionally in relationships and is therefore content with his limited social network. Clinically he did not endorse items suggesting the presence of any disorders, although he endorsed having struggled with alcohol dependence in the past. His alcohol use appears to have been primarily a function of his high risk-taking personality traits, which are evidenced to alleviate as individuals mature.’

69   In the second report Ms Hare … states:

‘...I would add antisocial and narcissistic personality traits as a risk factor at the time of the offence. I continue to be of the opinion that the sexual offence was impulsive and opportunistic...’

70   The applicant states in his affidavit …:

‘A lot of time has passed since my previous criminal conduct. I am not the same person today that I was when I committed those offences. I have a stable life and a family. I just want to be able to have a relationship with my granddaughter.’

71   The length of time since the last offence is significant.

72   Ms Hare’s assessment based upon the STATIC-99 (Harris et al 2003) risk assessment tool places the applicant in the moderate-low risk category: …. According to the risk assessment tool manual it identifies that out of 100 offenders presenting with the applicant’s score on the tool, ‘approximately 5 will be re-convicted of a sexual offence in the next 5 years, and 8 will sexually recidivate within the next 10 years.’ …. As observed by Ms Hare … ‘[r]econviction rates inevitably underestimate the true rate of reoffending” and the tool cannot tell which “individual will fall into the percentage of offenders who sexually recidivate at the level of risk identified.’

73   Ms Hare also utilised the Risk for Sexual Violence Protocol (RSVP; Hart, Kropp & Laws, 2003) and assessed his level of dynamic risk of sexual violence as low: …. The primary factors identified by Ms Hare that increased the likelihood of committing a sexual offence in 1973, … are as follows:

(a)   ‘Willingness to use physical coercion to meet his needs and further the commission of the sexual offence;

(b)   Limited self-awareness of the motivation for committing the offence, or what placed him at heightened risk;

(c)   Problems with alcohol use providing a further disinhibiting factor;

(d)   Problems with employment;

(e)   Engagement in generally elevated levels of criminality, reflecting antisocial attitudes and beliefs;

(f)   Problems with making an[d] implementing prosocial life planned, reflected in his hedonistic lifestyle which evidence a general absence of concern for consequences, failure to live by societal norms, and absence of accountability associated with increased community stability;

(g)   Problems accepting and benefiting from supervision.’

74   Ms Hare also identified secondary risk enhancing factors which were present in 1973. Of the risk enhancing factors Ms Hare only identified the presence of one of those currently, which is his employment instability.

…

83   The other witnesses who gave statements at the time of the offence did not support the version given by the applicant. There is clear evidence upon which the Tribunal has to rely and it contradicts the stated memory, or lack of memory, of the applicant. Until there is an acknowledgement of the extent of the past abusive behaviour and sustained positive effort to address that behaviour, it is the assessment of the Tribunal that the likelihood of a repetition of that behaviour remains significant: cf. T v H and Ors [1985] NSWSC, Unreported 19/12/1985; SS v Department of Human Services (NSW) [2010] NSWDC 279 at [111]-[114]; BHY v Children’s Guardian [2015] NSWCATAD 91.” (emphasis in [83] added)

43. The reasons then addressed the criteria in ss 30(1)(j) and 30(1)(k). Next, in a section entitled “Consideration and determination”, NCAT found:

“90   … It would appear from the criminal history that the behaviour of the applicant is characterised by a lack of empathy for victims leading to the criminal events. The applicant has not been able to show that he has the capacity to prevent repetition of these threats to vulnerable victims.

91   The behaviour, if repeated, would do significant harm to the victims. The paramount principle under the Act includes protection of children from suffering abuse.

92   There is a lack of evidence of mitigating factors such as examination of the reasons for the offending behaviour or the development of insight into his behaviour. The applicant may have limited cognitive capacity in order to be able to develop sufficient insight. Ms Hare the psychologist who provided risk assessment evidence to the Tribunal did not undertake formal testing of the applicant’s intellectual functioning, but formed the opinion that the applicant is functioning in the below average range and his insight into his behaviour was limited: ….

93   Remorse on its own is not considered to be a factor that mitigates risk and without more than an expression of such sentiment, is a hollow response to an existing behavioural reaction. The applicant told Ms Hare that he had ‘felt sorry afterwards’ in relation to the offence which renders him a disqualified person: …. It is not clear whether the events for which he expresses remorse are the same as the facts to which he pleaded guilty. Ms Hare notes … that other professionals have referred to the applicant’s ‘indifference to the consequences of his actions’ (the probation and parole officer), and the psychiatrist’s observation by Dr Robbie, referred to earlier in these reasons, that: ‘This impression of unconcern that he gives is I am sure only a superficial one; underneath I think he is fairly alarmed.’

94   The Tribunal has been provided an account of the offending behaviour which led to the applicant becoming a disqualified person which is significantly different to the actual facts which occurred, as found by the sentencing Court. The personality traits identified in the assessment tool, Millon Clinical Multiaxial Inventory- Third edition (MCMI-III; Millon et al 2006) are to some extent validated by the second report of Ms Hare … which states:

“...I would add antisocial and narcissistic personality traits as a risk factor at the time of the offence. I continue to be of the opinion that the sexual offence was impulsive and opportunistic...”

95   Ms Hare previously identified a level of detachment from others and possible difficulties with empathy, reflecting a generally exaggerated sense of self-importance and feelings of superiority. This is suggested as the likely impetus for him to engage in risk-taking (including illegal) behaviour without particular concern for the consequences or impact upon others. These narcissistic and antisocial personality traits tend to manifest in a belief that the applicant is exempt from the conventional rules of behaviour, which perhaps provide some context for his past criminal behaviour, and possibly also for the applicant’s absence of remedial action when he was refused a clearance in 2013. It appears that generally the applicant does not invest overly emotionally in relationships and is therefore content with his limited social network. This is also consistent with a level of detachment and difficulties with empathic attunement towards others.

…

98   For the purposes of these proceedings, it is sufficient to observe that the evidence establishes that there is a real and appreciable risk of harm to children if the applicant repeats his unacceptable behaviour in the presence of children or if it is directed to children.

99   The applicant has not discharged the onus to prove that he does not pose a risk to the safety of children. The evidence received by the Tribunal establishes that the Tribunal cannot be satisfied that the applicant does not pose a risk to children.

Conclusion

100 In all the circumstances, on the balance of probabilities and taking into account all the considerations required under section 30 (1) of the Act and having regard to the material before the Tribunal it is concluded that the applicant poses a risk to the safety of children and should not receive a Working with Children check clearance. It is presumed unless proven to the contrary that the applicant is such a risk. The evidence has not discharged the onus to prove that the applicant is not such a risk.” (emphasis in [100] added)

44. As I will explain, the most significant part of the contention that an apprehension of bias arose in relation to the participation by the Senior Member in BVT (No 3) is that the reasons for decision in BVT (No 1) reveal a prejudgment by him of BVT’s remitted application. In that regard, four matters should be noted about what would be apparent to the reasonable observer from reading BVT (No 1).

45. First, the observer would no doubt conclude that BVT was overall unsuccessful in demonstrating that he was not a risk to the safety of children. The observer would not only note that NCAT found that BVT failed to discharge the onus upon him, the observer would also note that NCAT positively found that he posed a risk to the safety of children [32] . NCAT also made a number of subsidiary findings to support those determinations including that he had not acknowledged the extent of his “past abusive behaviour” [33] , had not demonstrated a “sustained positive effort to address that behaviour” [34] , that he had a “lack of empathy for victims leading to the criminal events” [35] and had not demonstrated a “capacity to prevent repetition of these events to vulnerable victims” [36] .

    32. BVT (No 1) at [100].

    33. BVT (No 1) at [83].

    34. BVT (No 1) at [83].

    35. BVT (No 1) at [90].

    36. BVT (No 1) at [90].

46. Second, it would be apparent to the observer that, to the extent that BVT described some of the circumstances of the index offence, his account was rejected by NCAT in favour of what was recorded in the police facts and the other witness statements. As noted below, Adamson J found that this finding was affected by legal error.

47. Third, the reasonable observer would, or at least might, have concluded that NCAT did not accept that BVT was genuine in stating that he had a poor memory of the circumstances of the index offence. In his exchanges with Ms Hare during the first hearing the Senior Member referred to BVT displaying a “convenient lack of memory”. Twice in BVT (No 1), NCAT referred to the evidence “contradict[ing] the stated memory, or lack of memory” of BVT [37] . The reference to “stated memory” suggests a strong degree of scepticism as to whether BVT was stating his actual memory. Further, an asserted lack of memory can only be “contradict[ed]” if the evidence shows that the witness in fact could remember. In that event the “stated … lack of memory” would not be genuine.

    37. BVT (No 1) at [46] and [83].

48. Fourth, the reasonable observer would have observed that NCAT did not refer to any aspect of Ms Hare’s reports that was favourable to BVT including her ultimate opinion about the risk he posed. As noted, throughout her reports and oral evidence Ms Hare maintained her opinion that BVT represented no greater risk to children than any other adult in the population. However, NCAT only emphasised those parts of her second report and oral evidence in which she mentioned “problematic personality traits”. Overall, a review of BVT (No 1) suggests that Ms Hare’s evidence was unfavourable to BVT whereas it was very favourable.

49. The very selective use of Ms Hare’s evidence by NCAT was not the basis upon which Adamson J quashed the decision in BVT (No 1). Generally it was for NCAT to identify the evidence upon which it relied to base its findings in BVT (No 1). However, the effective disregarding of all the favourable aspects of Ms Hare’s evidence in BVT (No 1) bears upon the perception of the reasonable observer considering the position of the Senior Member prior to deciding BVT (No 3). If the Senior Member had previously disregarded the favourable aspects of Ms Hare’s evidence when determining BVT (No 1) and presented her evidence as though it was unfavourable to BVT then the observer might be concerned that the Senior Member would not consider those favourable aspects when deciding BVT’s remitted application.

[2016] NSWSC 1169

50. In setting aside the decision in BVT (No 1), Adamson J found that three grounds of judicial review were made out but rejected a fourth.

51. First her Honour found that the findings in BVT (No 1) at [38] and [42] were based on a misapprehension of the effect of BVT’s plea of guilty [38] . Her Honour found that, in those paragraphs of BVT (No 1), NCAT elevated the police facts and witness statements to the “status of findings by the sentencing judge and admissions made by the plaintiff” [39] .

    38. [2016] NSWSC 1169 at [54] to [55].

    39. [2016] NSWSC 1169 at [58].

52. Second, Adamson J found that NCAT erred in law in finding in BVT (No 1) at [94] that it had “been provided with an account of the offending behaviour which led to the applicant becoming a disqualified person which is significantly different to the actual facts which occurred, as found by the sentencing Court” given that there was not material before NCAT demonstrating what was found by the sentencing Court [40] .

    40. [2016] NSWSC 1196 at [60].

53. Third, Adamson J found that NCAT did not discharge its duty to provide reasons in relation to its finding that BVT had not demonstrated that he does not pose a risk to children [41] and found that he did pose a risk to children [42] . Although her Honour accepted that NCAT’s reasons were “detailed and address each of the relevant statutory factors”, her Honour found that they did not “explain why the considerable length of time since the index offending; [BVT’s] youth and intoxication at the time; his extended period of non-offending; and his prolonged sobriety, were insufficient to discharge the onus” [43] .

    41. BVT (No 1) at [99] and [100].

    42. BVT (No 1) at [100].

    43. [2016] NSWSC 1169 at [72].

54. Fourth, her Honour rejected a contention that the Tribunal’s decision was unreasonable [44] .

    44. [2016] NSWSC 1169 at [83].

55. In concluding that relief should be granted, Adamson J found that NCAT’s assessment of BVT’s “credibility and acknowledgment of guilt of the offence in 1973 appears to have been substantially influenced by the error[s]” the subject of the first two grounds of review [45] .

    45. [2016] NSWSC 1169 at [84].

BVT (No 2)

56. As noted above, after the proceedings were remitted to NCAT the matter was referred to the Senior Member and a different general member. BVT applied for the Senior Member to disqualify herself. The application was refused (BVT (No 2)).

57. In BVT (No 2) the Senior Member stated that, in BVT (No 1), BVT’s “application was refused on the basis that the applicant had failed to discharge the onus to prove that he is not a risk to children” (BVT (No 2) at [2]). However, as noted, in BVT (No 1) NCAT did not just find that BVT failed to discharge that onus, it positively found that he “pose[d] a risk to the safety of children” [46] . In BVT (No 2), the Senior Member then referred to the judgment of Adamson J in [2016] NSWSC 1196 and the principles governing bias applications. The Senior Member noted BVT’s submission that in BVT (No 1) NCAT made an adverse finding about BVT’s credibility. The Senior Member rejected this submission stating:

    46. BVT (No 1) at [100].

“22   It is, with respect, not correct to say that the disqualified person’s credibility was affected by the error in relation to the plea of guilty. The Tribunal did not proceed to make a determination concerning the credibility of the applicant. The judgment, when read as a whole, explains that the evidence of the disqualified person and the professionals with whom he consulted, identified the disqualified person could not properly remember the events which led to his prosecution, either because he was drunk all the time as he said, or due his cognitive limitations which are evident to the psychologist and the psychiatrist, or because he did not want to recall the events due to a sense of shame or unconcern.

23   The questions which were asked of the applicant recorded in the transcript on 17 December 2015 gave the applicant an opportunity to reply to, for the first time orally and on affirmation, the evidence which is at variance to his own account of what happened many decades ago. The dictates of procedural fairness required that he be given that opportunity. The Tribunal thereafter did not proceed to make a determination concerning the credibility of the applicant. Nor did the Tribunal make a determination on the balance of probabilities concerning the evidence given by the applicant and the statements recorded in the material provided from the police brief. Instead, the Tribunal relied upon the plea of guilty to attempt to establish the accepted circumstances of the offence, and in the process fell into error. As Justice Adamson stated, the Tribunal could have made a determination as to the circumstances of the offence on the balance of probabilities using the documents produced from the District Court as the basis for such a determination weighed in light of the applicant’s primary evidence and responses and other statements to professionals, and there would have been no error in that process.

24   The applicant relied the evidence of Ms Hare, psychologist, in the original proceedings. That witness was able to say something about the various versions of events described in the original judgment as follows:

106. If BVT (No 2) did not record the making of a “decision” then the refusal of a NCAT member to disqualify themselves could be the subject of an application for relief in lieu of a writ of prohibition under s 69(1) of the Supreme Court Act1970 (NSW) if the member was joined as a party. In circumstances where the relevant member has proceeded to make a decision, such as BVT (No 3), and that is the subject of an appeal on the grounds of apprehended bias, then any such relief ought to be refused as a matter of discretion.

107. The second issue is whether, even if BVT (No 2) does record a “decision”, does the Senior Member’s refusal to recuse himself in a proceeding under the Working with Children Act involve the exercise of a “Division function” such that BVT has an appeal as of right against the decision under cl 17(1) of Schedule 3 to the NCAT Act. Even if that is the case, then cl 17(2) of Schedule 3 confirms that the Court’s power to grant relief is discretionary. Again, where the interlocutory decision has been overtaken by a final decision then it is appropriate to refuse relief on discretionary grounds. If no appeal from an interlocutory decision is available under cl 17(1) then the only other means of appealing to the Court under the NCAT Act is under s 83(1). If that provision was available it would be appropriate to refuse leave to appeal from BVT (No 2) given that it has been overtaken by BVT (No 3).

108. The third issue is whether a decision of the Senior Member to refuse to recuse himself is a decision “of [NCAT]” or “by [NCAT]” for the purposes of the above provisions. As noted, NCAT was constituted by two members for the purposes of determining BVT’s remitted application and it is not known whether it was reconstituted by a single member for the purposes of determining the recusal application. If it was not, then in theory relief under s 69 of the Supreme Court Act would be available if the Senior Member was joined.

Relief

115. It follows that BVT has established grounds 4 and 5 and is entitled to relief setting aside BVT (No 3) and remitting BVT’s application for determination according to law. The amended summons will be otherwise dismissed. It also follows that the Senior Member will be unable to hear that application. No argument was directed to the general member who decided BVT (No 3) but the same result would appear to follow. I will also order that the Children’s Guardian pay BVT’s costs of the proceedings. If either party seeks to contend for some different costs order they can make an appropriate application within the time provided for in Uniform Civil Procedure Rules 2005, r 36.16(3A).

116. Accordingly, the Court orders that:

(1)   The appeal against the decision of the New South Wales Civil and Administrative Tribunal in BVT v Children’s Guardian (No 3) [2017] NSWCATAD 111 be allowed;

(2)   The decision of the New South Wales Civil and Administrative Tribunal in BVT v Children’s Guardian (No 3) [2017] NSWCATAD 111 refusing the plaintiff’s application for an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 filed 17 April 2015 be set aside;

(3)   The plaintiff’s application for an enabling order be remitted to the New South Wales Civil and Administrative Tribunal for determination in accordance with law;

(4)   The Plaintiff’s amended summons be otherwise dismissed; and

(5)   The defendant pay the plaintiff’s costs of the proceedings.

**********

Endnotes

Decision last updated: 15 December 2017