CCC v Office of the Children's Guardian

[2015] NSWSC 471

Supreme Court

New South Wales

Medium Neutral Citation:

CCC v Office of the Children’s Guardian [2015] NSWSC 471

Hearing dates:

27 April 2015

Date of orders:

27 April 2015

Decision date:

27 April 2015

Jurisdiction:

Common Law

Before:

Beech-Jones J

Decision:

(1)   The summons be adjourned before a Registrar of this Court at 9.00am on 5 May 2015.

 

(2)   Costs be reserved.

 

(3) Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 the identity of the plaintiff or any of the alleged victims of any sexual offence not be published without the leave of the Court.

 (4)   The plaintiff be referred to as “CCC”.

Catchwords:

JUDICIAL REVIEW – whether to have application for review heard immediately on filing – matter adjourned – effect of quashing decision on review by NCAT of decision – no question of principle.

Legislation Cited:

- Child Protection (Working with Children) Act 2012
- Civil and Administrative Tribunal Act 2013, s 34
- Court Suppression and Non-publication Orders Act 2010 – s 7, s 8

Cases Cited:

- Collector of Customs (NSW) v Brian Lawler Automotive Pty Ltd (1979) 24 ALR 307
- Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597

Category:

Principal judgment

Parties:

CCC - Plaintiff
The Children’s Guardian – Defendant

Representation:

Counsel:
Dr R.M. Della-Bosca (Plaintiff)
Ms G.F. Mahony (Defendant)

  Solicitors:
In person (Plaintiff)

File Number(s):

2015/124266

Publication restriction:

See orders (3) and (4) in [20].

ex tempore Judgment

Various forms of final relief in the nature of declarations, certiorari and mandamus

1. Filed in Court today was a summons naming as the defendant the Office of the Children's Guardian (the “Guardian”). It seeks various forms of final relief in the nature of declarations, certiorari and mandamus concerning a decision by the Guardian under the Child Protection (Working With Children) Act 2012 (the “Working with Children Act”) to refuse the grant of a working with children check clearance to the plaintiff.

2. It is only necessary to briefly describe the background to the matter. In his affidavit the plaintiff says that he intends to pursue some form of vocation that requires him to obtain a clearance under the Working With Children Act. To that end he applied to the Guardian for a clearance pursuant to s 13.

3. At some point the Guardian imposed an interim bar on him pursuant to s 17. On 25 March 2015 he received a letter notifying him that the interim bar had been superseded because a risk assessment had been conducted which was adverse and his application had been refused under s 18.

4. The plaintiff subsequently applied for review in the Civil and Administrative Appeals Tribunal (also known as NCAT) pursuant to Part 4 of the Working With Children Act. An application for a stay of the Guardian's decision was recently heard by NCAT and refused.

5. At some point the plaintiff was provided with a copy of a document which recorded the outcome of a risk assessment of him purportedly undertaken pursuant to s 15 of the Working With Children Act. He was also provided with a notice of the Guardian's reasons for refusing his application in accordance with s 20.

6. The matter that troubled the plaintiff was that there were some parts of the risk assessment form that were not signed. The primary contention in these proceedings is that this is said to mean that a risk assessment was not in fact undertaken by the Guardian, that there was therefore no proper conclusion by the Guardian that the plaintiff posed a risk to the safety of children, and there thus arose an obligation on the Guardian to issue a clearance to him (see s 18(2) of the Working With Children Act).

7. In the meantime the proceedings before NCAT are listed for further directions on 29 May 2015, at which time a hearing date will be allocated.

8. This matter was brought before me sitting as the duty judge. It is clear that the contentions of the plaintiff are not ones that are appropriate to be determined immediately by a duty judge. Instead, the contentions about the validity of the assessment are ones that, if pursued, will need to proceed in accordance with the usual processes which would involve the Guardian having a proper opportunity to address them.

9. Generally, proceedings in the nature of judicial review concerning this subject matter can be heard reasonably expeditiously in this Court, There is certainly nothing that has been raised that would warrant any greater expedition being offered to the plaintiff to pursue his contentions compared with the other plaintiffs in this Court.

10. Accordingly, the order that will be made today will simply be to adjourn the proceedings to a date before a Registrar. However, it is appropriate to make some observations about these proceedings for the parties to consider their position.

11. It is not appropriate on such short notice for the Court to enter into the debate about the validity of the risk assessment and what that may mean about the Guardian's decision to refuse a clearance. It is, however, generally the case that even an invalid administrative decision has sufficient life to form the basis for a valid application to review it by a body that exercises a de novo power of review such as a tribunal (see Collector of Customs (NSW) v Brian Lawler Automotive Pty Ltd (1979) 24 ALR 307; and see also Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597 at [46]).

12. The consequence of that proposition, if it be correct, is that, even if the plaintiffs established an invalidity on the part of Guardian’s assessment, NCAT would still be seized of jurisdiction to review the decision to refuse the clearance.

13. Further, one of the premises of the plaintiff's case appears to be that, if the assessment undertaken by the Guardian is proved not to have been properly completed, then he is entitled to the issue of a clearance because in that circumstance the Guardian would not be satisfied that he posed a risk to the safety of children (s 18(2)). That premise is misconceived. If it be the case that the material reveals that the process of assessment has not been properly signed off by those with relevant authority on the part of the Guardian, then that would simply represent a failure by the Guardian to undertake a risk assessment. In that case the relief that would be granted would simply reflect the necessity for that process to be completed. The obligation in s 18(2) on the Guardian to grant a clearance would not arise unless and until the risk assessment process had been finalised.

14. This would mean that even if the plaintiff was successful, it is unlikely to lead to any of the intended success for him, at least in the short term.

15. Otherwise, I note that s 34 of the Civil and Administrative Tribunal Act 2013 confers on this Court a discretion to refuse to conduct judicial review of a decision that is reviewable by NCAT. The time for the consideration of s 34 has not yet arisen. It would not be fair to the plaintiff to invoke on the very afternoon they have commenced their proceedings. Nevertheless, he has now had that provision brought to his attention. Ultimately, the plaintiff has to make a decision about whether he wishes to continue with his proceedings in NCAT or not.

16. Accordingly, the only orders I will make are that:

1. the summons be adjourned before a Registrar of this Court at 9.00am on 5 May 2015;

2. costs be reserved.

[The plaintiff applied for a non-publication order and a pseudonym order]

17. The plaintiff has applied for a form of non-publication order and also an order known as a pseudonym order in which a relevant pseudonym can be substituted for his name on the Court papers and any published judgment.

18. It appears that there is a practice in NCAT of granting such orders in all of these types of cases. It is not appropriate on an application of this kind for this Court to express any view about that practice. However, in this case it does appear from reading the materials that the publication of the plaintiff's name in the context of the issues that are likely to arise has the potential to lead to the identification of persons who were alleged to be the victims of sexual offences. It is clear beyond argument that there is a public interest in the suppression of the identity of such victims and material that is capable of identifying them, and that that public interest outweighs the public interest in open justice to the extent it might be served by their being identified (Court Suppression and Non-publication Orders Act 2010; s 8(1)(e)).

19. Whether the suppression of the identity of a person who seeks judicial review of action taken by the Guardian or NCAT under the Working with Children Act which is unrelated to any need to protect the identity of an alleged victim of crime is warranted is a large question which it is not necessary to determine.

20. Accordingly, the Court orders that:

(3) Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 the identity of the plaintiff or any of the alleged victims of any sexual offence not be published without the leave of the Court.

(4)   The plaintiff be referred to as “CCC”.

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Decision last updated: 04 May 2015