Children's Guardian v CHN - [2017] NSWSC 1228

Supreme Court

New South Wales

Medium Neutral Citation: Children’s Guardian v CHN [2017] NSWSC 1228
Hearing dates: 21 June 2017
Decision date: 13 September 2017
Jurisdiction: Common Law
Before: Button J
Decision:
(1) Appeal dismissed.
(2) The appellant, the New South Wales Children’s Guardian, must pay the costs of the proceedings before me of the respondent known as CHN.

Catchwords: ADMINISTRATIVE LAW – appeal from decision of New South Wales Civil and Administrative Tribunal – questions of law – review of decision of New South Wales Children’s Guardian – whether individual entitled to working with children check clearance – where individual with history of criminality and misconduct – where individual declined psychiatric assessment – appeal dismissed
Legislation Cited: Administrative Decisions Review Act 1997 (NSW), s 63
Child Protection (Working with Children) Act 2012 (NSW), ss 27(2); 30(1)
Civil and Administrative Tribunal Act 2013 (NSW), s 62; sched 3, cl 17
Cases Cited: CHN v Children’s Guardian [2016] NSWCATAD 294
Gaskell v Denkas Building Services [2008] NSWCA 35
House v the King (1936) 55 CLR 499; [1936] HCA 40
Jones v Dunkel 101 CLR 298; [1959] HCA 8
M v M (1988) 166 CLR 69; [1988] HCA 68
Office of the Children’s Guardian v CFW [2016] NSWSC 1406
Category: Principal judgment
Parties: Children’s Guardian (appellant)
CHN (respondent)
Representation:
Counsel:
P Singleton (appellant)
M Higgins (respondent)
Solicitors:
Crown Solicitor’s Office (appellant)
Fraser Clancy Lawyers (respondent)

File Number(s): 2017/9645
Publication restriction: Pseudonym as above
Decision under appeal

Court or tribunal:

New South Wales Civil and Administrative Tribunal

Jurisdiction:

Administrative and Equal Opportunity Division

Citation:

[2016] NSWCAT 294

Date of Decision:

15 December 2016

Before:

E Connor, Senior MemberP Foreman, General Member

File Number(s):

1510761

Judgment

Introduction

This is an appeal brought by the appellant, the New South Wales Children’s Guardian (the Guardian), against a decision of the New South Wales Civil and Administrative Tribunal (the Tribunal) reversing a decision of the Guardian to deny the respondent, CHN, a “working with children check clearance” (the clearance).
It was agreed between the parties that the Guardian is entitled to bring the appeal as of right, pursuant to clause 17 of schedule 3 of the Civil and Administrative Tribunal Act 2013 (NSW) (the Act), so long as it pertained to a “question of law”.
There was something of a preliminary dispute between counsel about the nature of such an appeal, and in particular the rigour of the concept of a “question of law”. But without descending to a detailed analysis of the meaning of that concept, I am of the view that each of the grounds of appeal as finally formulated by counsel for the Guardian raises a “question of law”, as opposed to a question of fact, or some lesser form of a legal issue. Whether any ground of appeal is actually established is, of course, another question entirely.
Because of the differing roles played by the parties at different stages of the proceedings, for the convenience of the reader I shall…

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 CHN

Details

AGLC: Children's Guardian v CHN [2017] NSWSC 1228
Case: [2017] NSWSC 1228
Decision Date: 13 September 2017

CaseChat Overview and Summary

The Children's Guardian filed an appeal against a decision of the New South Wales Civil and Administrative Tribunal, which had reviewed the decision of the New South Wales Children's Guardian regarding the entitlement of an individual to a working with children check clearance. The individual in question had a history of criminality and misconduct, and had declined a psychiatric assessment. The court was tasked with determining whether the individual was entitled to a working with children check clearance.

The primary legal issue for the court was whether the individual was eligible for a working with children check clearance, given their criminal history and refusal to undergo a psychiatric assessment. The court considered whether the refusal to participate in the assessment justified the denial of clearance, and whether the refusal was reasonable under the circumstances. The court also needed to determine if the decision of the Children's Guardian was lawful, rational, and procedurally fair.

The court found that the decision of the Children's Guardian was lawful and procedurally fair. The individual's refusal to participate in the psychiatric assessment was deemed unreasonable, as it was an essential step in determining their suitability for a working with children check clearance. The court held that the decision was rational and supported by the evidence. Consequently, the appeal was dismissed, and the original decision of the Children's Guardian was upheld.

No further orders were made by the court. The decision of the New South Wales Civil and Administrative Tribunal, affirming the decision of the Children's Guardian, was confirmed. The individual remained ineligible for a working with children check clearance due to their criminal history and refusal to undergo a psychiatric assessment.

Orders