CLD v Children's Guardian - [2017] NSWSC 936

Supreme Court

New South Wales

Medium Neutral Citation: CLD v Children’s Guardian [2017] NSWSC 936
Hearing dates: 13 July 2017
Date of orders: 13 July 2017
Decision date: 13 July 2017
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1) Order pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), on the ground specified in s 8(1)(e) of that Act, that:
(a) the name and address of the plaintiff and any child referred to in the evidence before this Court or the New South Wales Civil and Administrative Decisions Tribunal (the Tribunal); and
(b) the name and address of any other person whose publication would identify their names and addresses
not be published without the leave of the Court.
(2) Order that the plaintiff be referred to as CLD.
(3) Allow the appeal.
(4) Set aside the decision of the Tribunal recorded in CLD v Children's Guardian [2017] NSWCATAD 134.
(5) Remit the proceedings to the Tribunal for determination by a differently constituted Tribunal.
(6) Order the defendant to pay the plaintiff's costs in the agreed amount of $1,200.

Catchwords:
ADMINISTRATIVE LAW – administrative review –plaintiff challenged decision of defendant to cancel Working with Children clearance in Civil and Administrative Tribunal which confirmed decision – plaintiff requested opportunity to make further submissions if Tribunal intended to dismiss the application – notice not provided by Tribunal to plaintiff that it proposed to confirm the decision under review without hearing from the plaintiff – Tribunal failed to provide opportunity to the parties to be heard on the making of an order dispensing with a hearing and failed to make such an order as required by s 50 of the Civil and Administrative Tribunal Act 2013 (NSW) – HELD – decision of Tribunal vitiated by non-compliance with s 50 – matter remitted back to differently constituted Tribunal – satisfied that relief sought by consent ought be granted
PRACTICE AND PROCEDURE – non-publication order necessary as statutory prohibitions do not cover relevant field
Legislation Cited: Child Protection (Working with Children) Act 2012 (NSW), ss 17, 23, 27, 30
Children and Young Persons (Care and Protection) Act 1998 (NSW), s 79
Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Civil and Administrative Tribunal Act 2013 (NSW), s 50
Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8, 12
Crimes Act 1900 (NSW), s 578A
Cases Cited: Attorney General of NSW v Huckstadt (No 2) [2017] NSWSC 595
M v M (1988) 166 CLR 69
Seltsam Pty Limited v Ghaleb [2005] NSWCA 208
Texts Cited: K Mason, “Unconscious Judicial Prejudice” (2001) 75 ALJ 676
Category: Principal judgment
Parties: CLD (Plaintiff)
Children’s Guardian (Defendant)
Representation:
Counsel:
P Singleton (Plaintiff)
M Higgins (Defendant)
Solicitors:
Robertson Solicitors (Plaintiff)
Crown Solicitor’s Office (Defendant)

File Number(s): 2017/151292
Publication restriction: Order made on 13 July 2017 pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) that there is to be no publication of the name and address of the plaintiff…

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 CLD v Children's Guardian

Details

AGLC: CLD v Children's Guardian [2017] NSWSC 936
Case: [2017] NSWSC 936
Decision Date: 13 July 2017

CaseChat Overview and Summary

The plaintiff, CLD, challenged the decision of the defendant, the Children's Guardian, to cancel their Working with Children clearance in the Civil and Administrative Tribunal. The Tribunal upheld the decision of the defendant, but CLD sought to appeal this decision on the grounds that they were not given the opportunity to make further submissions before the Tribunal confirmed the decision. The plaintiff argued that the Tribunal had failed to provide notice that it intended to confirm the decision without a hearing and did not allow the parties to be heard on the making of an order dispensing with a hearing. The plaintiff further argued that the Tribunal's failure to comply with the statutory requirement of s 50 of the Civil and Administrative Tribunal Act 2013 (NSW) meant that the decision was vitiated.

The court found that the Tribunal had indeed failed to provide the required notice to the parties that it intended to confirm the decision without a hearing and did not allow the parties to be heard on the making of such an order. This failure meant that the decision was vitiated and the matter was remitted back to a differently constituted Tribunal. The court found that it was appropriate to grant the relief sought by consent and that a non-publication order was necessary as the statutory prohibitions did not cover the relevant field. The court concluded that the decision of the Tribunal was quashed and the matter was remitted back to the Tribunal for further consideration.

Orders