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Children's Guardian v CVE

Children's Guardian v CVE

Case [2017] NSWSC 1342 4 October 2017

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Supreme Court

New South Wales

Medium Neutral Citation: Children’s Guardian v CVE [2017] NSWSC 1342
Hearing dates: 15 September 2017
Date of orders: 15 September 2017
Decision date: 04 October 2017
Jurisdiction: Common Law
Before: Walton J
Decision:
The Court confirms the orders made on 15 September 2017.

Catchwords: ADMINISTRATIVE LAW – appeal – consent to uphold appeal – operation of s 30(1A) of the Children Protection (Working with Children Act) 2012 (NSW) – requisite satisfaction – failure to address legislative requirements before making orders – appeal allowed – remitter
Legislation Cited: Administrative Decisions Review Act 1997 (NSW)
Child Protection (Working with Children) Act 2012 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Cases Cited: Belcar Pty Ltd v Premier Automotive Group Australia Pty Ltd (2007) 249 LSJS 403; [2007] SASC 240
Blyth v Blyth [1966] 1 All ER 524
Children’s Guardian v CHN [2017] NSWSC 1228
Commission for Children and Young People v V (2002) 56 NSWLR 476; [2002] NSWSC 949
CVE v Children's Guardian [2017] NSWCATAD 197
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40
Tural v Potter; BAH v Magistrates' Court of Victoria (2000) 110 A Crim R 475; [2000] VSC 80
Category: Principal judgment
Parties: Children’s Guardian (Plaintiff)
CVE (Defendant)
Representation:
Counsel:
P Singleton (Plaintiff)
L Andelman (Defendant)
Solicitors:
Crown Solicitor’s Office (Plaintiff)

File Number(s): 2017/217211

Reasons for Judgment

The plaintiff, the Children's Guardian (“the Guardian”), has by an amended summons filed in Court on 15 September 2017 appealed the decision of the Civil and Administrative Tribunal (“the Tribunal”) published on 20 June 2017: CVE v Children's Guardian [2017] NSWCATAD 197 (“CVE No 1”).
The proceedings before the Tribunal concerned an application by the defendant, CVE, for review of the decision of the Guardian dated 21 October 2016 to refuse her a clearance to work with children pursuant to s 27 of the Child Protection (Working with Children) Act 2012 (NSW) (“the Act”).
The Tribunal was required to exercise the functions of the Guardian and proceed de novo to what it considered to be the “correct and preferable” decision in light of the applicable law and any relevant factual material: Administrative Decisions Review Act 1997 (NSW), s 63. The Tribunal decided to set aside the decision of the Guardian and substitute a “decision” that the defendant be granted a working with children check clearance (CVE No 1 at [85]).
Clause 17(1) of Sch 3 to the Civil and Administrative Tribunal Act 2013 (NSW) enables the Guardian to appeal to this Court on a question of law. The Guardian appealed on two grounds, but now only presses the first of them. That is because the defendant conceded the appeal on that ground. The remaining ground of appeal was that “[t]he Tribunal erred at law by failing to address, or make any determination under, sub-s 30(1A) of the Act”. Upon that ground the parties proposed consent orders as follows:

Appeal allowed.

The decision of 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.

Continue reading Children's Guardian v CVE

Details

AGLC: Children's Guardian v CVE [2017] NSWSC 1342
Case: [2017] NSWSC 1342
Decision Date: 04 October 2017

CaseChat Overview and Summary

The case before the court was an appeal by the Children's Guardian against a decision made by CVE under the Children Protection (Working with Children) Act 2012 (NSW). The Guardian argued that CVE had not fulfilled its obligations under section 30(1A) of the Act, which requires a requisite level of satisfaction that all legislative requirements have been met before making certain orders. The dispute centred around the interpretation and application of this statutory provision, particularly in the context of ensuring compliance with legislative requirements before making decisions affecting children's welfare.

The primary legal issue for the court was to determine whether CVE had properly exercised its discretion under section 30(1A) of the Act. Specifically, the court had to consider whether CVE had adequately satisfied itself that all legislative requirements had been met before making the contested orders. This involved examining the legislative framework, the statutory language, and the context in which the decision was made. The court also needed to assess whether the decision-making process complied with the requisite level of satisfaction as mandated by the Act.

The court found that CVE had not sufficiently addressed the legislative requirements before making the orders, thus failing to achieve the requisite level of satisfaction as required by section 30(1A) of the Act. The court held that CVE's failure to properly consider and address these requirements rendered its decision flawed. Consequently, the court allowed the appeal and remitted the matter back to CVE for reconsideration in light of the statutory obligations. This decision underscored the importance of ensuring compliance with legislative mandates when making decisions affecting children's welfare.

Orders