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CGB v Children's Guardian

CGB v Children's Guardian

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Case Copied 31 May 2018 68 min read

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: CGB v Children’s Guardian [2018] NSWSC 776
Hearing dates: 2 February 2018
Date of orders: 31 May 2018
Decision date: 31 May 2018
Jurisdiction: Common Law - Administrative Law
Before: Harrison AsJ
Decision:
The Court orders that:

(1) The appeal is dismissed.

(2) The summons filed 1 December 2017 is dismissed.
(3) The plaintiff is to pay the defendant’s costs on an ordinary basis.
Catchwords: ADMINISTRATIVE LAW – judicial review – appeal against decision of the NSW Civil and Administrative Tribunal – Child Protection (Working with Children) Act 2012 (NSW) – working with children check clearance – whether the Tribunal erred in the use it made of evidence of prior representations that had been admitted for a non-hearsay purpose only – whether the Tribunal erred in its application of s 30(1)(j) of the Child Protection (Working with Children) Act 2012 (NSW) – whether the Tribunal provided adequate reasons – appeal dismissed
Legislation Cited: Child Protection (Working with Children) Act 2012 (NSW), ss 3, 10, 18, 27, 28 and 30
Children and Young Persons (Care and Protection) Act 1998 (NSW), s 137
Civil and Administrative Tribunal Act 2013 (NSW), s 17, 38 and 62
Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 7 and 8
Crimes Act 1900 (NSW), ss 61J and 62
Evidence Act 1995 (NSW), s 59 and 60
Cases Cited: Applicant A169/2003 v Minister of Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8
Applicant WAEE v Minister of Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184
BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523
Briginshaw v Briginshaw (1938) 60 CLR 336
BVT v Office of Children’s Guardian [2017] NSWSC 1763
Children’s Guardian v BRL [2016] NSWSC 1206
Children’s Guardian v CKF [2017] NSWSC 893
Collins v Urban [2014] NSWCATAP 17
Commission for Children and Young People v V [2002] NSWSC 949
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
M v M (1988) 166 CLR 69; [1988] HCA 68
McGinn v Ashfield Council [2012] NSWCA 238
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Norvill v Barton; Tickner v Chapman and Tickner v Barton (1995) 57 FCR 451; (1995) 133 ALR 226
Office of the Children’s Guardian v CFW [2016] NSWSC 1406
Roberts v Balencio (1987) 8 NSWLR 436
Thang Van Pham v NRMA Insurance Limited
Walsh v Parramatta City Council [2007] NSWLEC 255; (2007) 161 LGERA 118
Category: Principal judgment
Parties: CGB (Plaintiff)
Children’s Guardian (Defendant)
Representation:
Counsel:
C McGorey (Plaintiff)
AB Douglas-Baker (Defendant)
Solicitors:
Legal Aid NSW (Plaintiff)
Office of the Crown Solicitor (Defendant)

File Number(s): 2017/207032
Publication restriction: (1) Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), on the grounds specified in s 8(1)(e) of the Act, order that: (a) the name and address of the plaintiff and any child referred to…

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.

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Details

Case: [2018] NSWSC 776
Decision Date: 31 May 2018

CaseChat Overview and Summary

The appellant, CGB, was seeking a judicial review of a decision by the NSW Civil and Administrative Tribunal (NCAT) that had revoked their clearance to conduct work with children. The decision was made under the Child Protection (Working with Children) Act 2012 (NSW). The Tribunal concluded that CGB was not fit and proper to hold a working with children check clearance, primarily because of their prior criminal convictions and representations made during the proceedings. The central legal issues that the court needed to address were whether the Tribunal had erred in its use of evidence of prior representations that were admitted for a non-hearsay purpose only, and whether the Tribunal had erred in its application of section 30(1)(j) of the Child Protection (Working with Children) Act 2012 (NSW). Additionally, the court had to determine whether the Tribunal had provided adequate reasons for its decision.

The court examined the process by which the Tribunal evaluated the evidence, particularly the prior representations made by CGB. It found that the Tribunal was entitled to consider these representations, which were admitted for a non-hearsay purpose. The court held that the Tribunal's use of this evidence was not erroneous. In relation to section 30(1)(j) of the Act, the court determined that the Tribunal had correctly applied the statutory criteria. The court also found that the Tribunal had provided sufficient reasons for its decision, fulfilling its obligation to articulate the basis for its conclusion. Therefore, the appeal was dismissed as the Tribunal's decision was found to be legally sound and adequately reasoned.

Orders