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Children's Guardian v CF1

Children's Guardian v CF1

Case [2020] NSWSC 1673 27 November 2020

Jurisdiction

Judicial Review

Natural Justice & Procedural Fairness

Administrative Law

Type to search within this case.

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Children’s Guardian v CF1 [2020] NSWSC 1673
Hearing dates: 3 November 2020
Date of orders: 27 November 2020
Decision date: 27 November 2020
Jurisdiction: Common Law
Before: Davies J
Decision:
(1) The order made by the New South Wales Civil and Administrative Tribunal, Administrative and Equal Opportunity Division, granting the defendant a working with children check clearance is set aside.
(2) Remit the proceedings to the Tribunal, differently constituted, to be determined according to law.

Catchwords:
ADMINISTRATIVE LAW - judicial review - appeal from decision of New South Wales Civil and Administrative Tribunal - working with Children clearance - where defendant was charged with multiple counts of sexual intercourse and sexual assault of a minor - where charges did not proceed to Court because complainant did not want to give evidence - whether Tribunal misapplied the statutory test in s 18(2) of the Child Protection (Working with Children) Act - where Tribunal conflated concepts of not being satisfied offences occurred and finding that allegations were groundless - where Tribunal erred in finding allegations groundless - where Tribunal erred in giving negligible weight to witness statements - where undue weight placed on evidence not being tested in circumstances where defendant did not require witnesses for cross-examination - where denial of procedural fairness - decision set aside and matters remitted to tribunal

Legislation Cited:
Child Protection (Working with Children) Act 2012 No. 51 (NSW) ss 5, 14, 15, 18, 30, Sch 1
Civil and Administrative Tribunal Act 2013 (NSW) Sch 3

Cases Cited:
Children’s Guardian v BRL [2016] NSWSC 1206
Children's Guardian v CXZ [2019] NSWSC 1083
DVY v Children's Guardian [2020] NSWCATAD 151
M v M (1988) 166 CLR 69
Office of the Children’s Guardian v CFW [2016] NSWSC 1406

Texts Cited:
Nil

Category: Procedural and other rulings
Parties: Children’s Guardian (Plaintiff)
CF1 (Defendant)
Representation:
Counsel:
J Emmett & J Brezniak (Plaintiff)
D McGirr (Defendant)
Solicitors:
Crown Solicitors Office (Plaintiff)
McGirr Lawyers Pty Ltd (Defendant)

File Number(s): 2020/204189
Publication restriction: Nil
Decision under appeal

Court or tribunal:

New South Wales Civil and Administrative Tribunal

Jurisdiction:

Administrative and Equal Opportunity Division

Citation:

DVY v Children's Guardian [2020] NSWCATAD 151

Date of Decision:

15 June 2020

Before:

S Leal, Senior Member
E Hayes, General Member

File Number(s):

2019/00149537

Judgment

The defendant applied under the Child Protection (Working with Children) Act 2012 No. 51 (NSW) (“the Act”) for a working with children check clearance (“clearance”) from the plaintiff, the Children’s Guardian. That application was refused by the Children’s Guardian on 12 April 2019.
The defendant applied to the New South Wales Civil and Administrative Tribunal for an administrative review of the decision of the Children’s Guardian. On 15 June 2020 the Administrative and Equal Opportunity Division of NCAT set aside the decision of the Children’s Guardian and granted to the defendant a clearance: DVY v Children's Guardian [2020] NSWCATAD 151.
By summons filed 10 July 2020 the Children’s Guardian seeks 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.

Continue reading Children's Guardian v CF1

Details

AGLC: Children's Guardian v CF1 [2020] NSWSC 1673
Case: [2020] NSWSC 1673
Decision Date: 27 November 2020

CaseChat Overview and Summary

In the case of Children's Guardian v CF1, the dispute arose from the decision of the New South Wales Civil and Administrative Tribunal (NCAT) regarding the defendant's eligibility for a working with children clearance. The defendant, CF1, was charged with multiple counts of sexual intercourse and sexual assault of a minor. Although the charges did not proceed to court as the complainant declined to give evidence, the Children's Guardian sought to revoke CF1's clearance under the Child Protection (Working with Children) Act. CF1 appealed the Tribunal's decision to the Supreme Court of New South Wales, arguing that the Tribunal had misapplied the statutory test in section 18(2) of the Act and had conflated the concepts of not being satisfied that offences occurred and finding that allegations were groundless.

The primary legal issues before the court were whether the Tribunal misapplied the statutory test in section 18(2) of the Act, whether the Tribunal had conflated the concepts of not being satisfied that offences occurred and finding that allegations were groundless, and whether the Tribunal had erred in giving negligible weight to witness statements. The court further considered whether the Tribunal had denied procedural fairness by unduly weighing evidence that had not been tested in court due to the complainant's decision not to testify. The court's analysis involved a detailed examination of the statutory provisions, the Tribunal's decision-making process, and the weight given to various pieces of evidence.

The court found that the Tribunal had indeed misapplied the statutory test and conflated the distinct concepts of not being satisfied that offences occurred and finding that allegations were groundless. The court noted that the Tribunal had given negligible weight to witness statements and had placed undue emphasis on the fact that the evidence had not been tested in court. This was seen as a denial of procedural fairness, particularly since CF1 did not require witnesses for cross-examination. The court concluded that the Tribunal's decision was flawed and set it aside, remitting the matter back to the Tribunal for reconsideration in light of the court's findings.

The final orders of the court included setting aside the decision of the Tribunal and remitting the matter back to the Tribunal for re-hearing, ensuring that the Tribunal properly applies the statutory test, distinguishes between the relevant concepts, and appropriately weighs all evidence in accordance with the principles of procedural fairness.

Orders