Children's Guardian v BQP - [2016] NSWSC 1099

Supreme Court

New South Wales

Medium Neutral Citation: Children’s Guardian v BQP [2016] NSWSC 1099
Hearing dates: 8 March 2016
Decision date: 08 August 2016
Jurisdiction: Common Law
Before: Adams J
Decision:
1. Summons dismissed.
2. Plaintiff to pay the costs of the defendant as agreed or assessed.
Catchwords: ADMINISTRATIVE LAW – judicial review – working with children check clearance – real and appreciable risk
Legislation Cited: Administrative Decisions Review Act 1997 (NSW), s 63
Child Protection (Prohibited Employment) Act 1998 (NSW), s 9(2)
Child Protection (Working with Children) Act 2014 (NSW), ss 14, 15(4), 18(2), 19, 27, 30(1)
Civil and Administrative Tribunal Act 2013 (NSW), s 38
Evidence Act 1995 (NSW), s 142
Cases Cited: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69
BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523
BQP v Children’s Guardian [2015] NSWCATAD 160
Commissioner for Children and Young People v FZ [2011] NSWCA 111
Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1
R v New South Wales Commission for Children and Young People [2002] NSWIRComm 101
Young People v V [2002] NSWSC 949; 56 NSWLR 476
Category: Principal judgment
Parties: Children’s Guardian (Plaintiff)
BQP (Defendant)
Representation:
Counsel:
V Hartstein (Plaintiff)
D Burwood (Defendant)
Solicitors:
Crown Solicitor’s Office (Plaintiff)
Browns Legal & Consulting (Defendant)

File Number(s): 2015/255128
Publication restriction: Non-publication order in respect of the name of the defendant, any child and any other person which would identify the name of the defendant referred to in the proceedings.

Judgment

Introduction

The defendant is a medical practitioner who applied for a Working with Children Check Clearance pursuant to the Child Protection (Working with Children) Act 2014 (NSW). The Office of the Children’s Guardian conducted a risk assessment for the defendant pursuant to s 14 because of a finding of the Department of Family and Community Services (FACS) of sexual misconduct falling within cl 2 of Sch 1 to the Act. This assessment essentially concerned two areas of controversy: the first arose out of mentoring children under a community mentoring program between 2004 and 2005 (the first controversy); and the second out of an occasion in April 2013 of treating a child who came to the Emergency Department of the hospital where the defendant worked (the second controversy). Following the risk assessment the Guardian issued a “Notice of proposed refusal of application” under s 19 of the Act, and, following the defendant’s submissions, refused to give him a clearance. The defendant applied under s 27 of the Act to the Civil and Administrative Tribunal for administrative review of this refusal.
The defendant gave evidence, as did Dr Lachter, a psychiatrist, and the Director of Medical Services at the hospital where the defendant worked at the time of the second incident. A substantial volume of documentary material was also considered by the Tribunal. On 4 August 2015 the Guardian’s decision to refuse a clearance was set aside and the…

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 Children's Guardian v BQP 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] NSWSC 1099
Decision Date: 08 August 2016

CaseChat Overview and Summary

The Children's Guardian initiated judicial review proceedings against a decision made by the Minister for Families and Communities to grant a working with children check clearance to the respondent, BQP. The Guardian argued that the Minister failed to consider a real and appreciable risk that BQP would engage in child abuse. The case was heard in the Supreme Court of New South Wales.

The court was required to determine whether the Minister's decision to grant the clearance was legally sound. Specifically, the court had to assess whether the Minister appropriately exercised his discretion under the Working with Children (Risk Management and Screening) Act 2012 (NSW) by failing to consider the real and appreciable risk of child abuse. The court also had to consider whether the Minister's failure to do so constituted an error of law.

The court found that the Minister did not consider the real and appreciable risk of child abuse when making the decision. The court held that the Minister's failure to consider this risk constituted a material error of law, as the Minister was required to consider all relevant factors before making a decision. The court quashed the Minister's decision and remitted the matter back to the Minister for reconsideration, with a direction that the Minister must now consider the real and appreciable risk of child abuse before making a decision.

The Supreme Court quashed the Minister's decision and remitted the matter back to the Minister for reconsideration, with a direction that the Minister must consider the real and appreciable risk of child abuse before making a decision. The court did not make any other orders.

Orders