1. The summons is dismissed. 2. The plaintiff is to pay the defendant’s costs.
Catchwords:
ADMINISTRATIVE LAW – appeal against decision of Civil and Administrative Tribunal – decision to set aside refusal by Children’s Guardian of a working with children clearance – whether applicant posed a risk to safety of children – whether hearsay evidence of untried allegations admissible – absence of witnesses for cross-examination – rules of evidence not applicable – denial of procedural fairness
Counsel: Ms Victoria Hartstein (Plaintiff) Ms Larissa Andelman (Defendant)
Solicitors: Ms Lea Armstrong, Crown Solicitor’s Office (Plaintiff) Ms Nicola Cannon, Legal Aid Commission of New South Wales
File Number(s):
2016/074948
Publication Restriction:
1. Pursuant to s 7 Court Suppression and Non-publication Orders Act 2010 (NSW) (a) the defendant is to be referred to in the title of these proceedings only by the initials BRL; (b) the publication of the evidence in the proceedings in this court or information about that evidence or the transcript of the proceedings or any record of submissions is prohibited except that the judgment of the court in determination of the summons may be published; (c) the grounds of making the order are that in its absence publication of the proceedings to the extent which is referred to would likely cause distress and/or embarrassment to a person who was a complainant in criminal proceedings concerning charges of a sexual nature.
JUDGMENT
The plaintiff has appealed by summons filed 9 March 2016 from a decision and orders of the Civil and Administrative Appeals Tribunal made 10 February 2016. The appeal is limited to a question of law by force of Sch 3 cl 17(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW).
The Tribunal's decision was made in an application under s 27 of the Child Protection (Working with Children) Act 2012 (NSW) (the "Working with Children Act"). The defendant had been refused a "working with children check clearance" under s 18 of the Working with Children Act. The decision maker was the plaintiff, the Children's Guardian, appointed under s 178 of the Children and Young Persons (Care and Protection) Act 1998 (NSW).
The error of…
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
AGLC
Children's Guardian v BRL [2016] NSWSC 1206
Case
[2016] NSWSC 1206
Decision Date
CaseChat Overview and Summary
The Children's Guardian appealed against a decision of the Civil and Administrative Tribunal, which had set aside the Guardian's refusal to grant a working with children clearance to the applicant. The dispute centred on whether the applicant posed a risk to the safety of children. The Tribunal had concluded that the Guardian's decision was flawed due to the reliance on hearsay evidence regarding untried allegations, and the absence of witnesses for cross-examination. The Guardian argued that the Tribunal had erred in finding that the rules of evidence did not apply and that the process was procedurally unfair.
The key legal issues before the court were whether the Tribunal had correctly applied the rules of evidence in its assessment of the Guardian's decision, and whether the Guardian's procedural fairness obligations were breached by not allowing witnesses to be cross-examined. The court had to determine if the hearsay evidence was appropriately considered, and if the Guardian's decision-making process complied with the principles of natural justice. The Guardian contended that the hearsay evidence was inadmissible and that the absence of witnesses for cross-examination denied the applicant a fair opportunity to respond to the allegations.
The court found that the Tribunal had correctly determined that the rules of evidence did not apply to the Guardian's decision-making process, as it was not a formal hearing. The hearsay evidence was appropriately considered in the context of a risk assessment, and the absence of witnesses for cross-examination did not necessarily result in a denial of procedural fairness. The Guardian's decision-making process was found to be procedurally fair, as the applicant had been given an opportunity to make submissions and present evidence in response to the allegations. The court upheld the Tribunal's decision to set aside the Guardian's refusal to grant the clearance.
The appeal was dismissed, and the Tribunal's decision was upheld. The Guardian was required to reconsider the applicant's application for a working with children clearance, taking into account the evidence and submissions presented to the Tribunal. The court emphasised that the Guardian must ensure that any future decision-making process adheres to the principles of procedural fairness and considers all relevant evidence, including hearsay, where appropriate.