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Tribunal); and (b) the name and address of any other person whose publication would identify their names and addresses not be published without the leave of the Court.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 and any child referred to in the evidence before this Court or the New South Wales Civil and Administrative Tribunal and the name and address of any other person whose publication would identify their names and addresses without the leave of the Court and that the plaintiff be referred to as CLD.
Decision under appeal	Court or tribunal: New South Wales Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2017] NSWCATAD 134 Date of Decision: 28 April 2017 Before: M Anderson, Senior MemberM Bolt, General Member File Number(s): 1610093

Judgment

Introduction

1. By amended summons dated 20 June 2017 the plaintiff (CLD) seeks various orders, including an order that the decision of the New South Wales Civil and Administrative Tribunal (the Tribunal) recorded in CLD v Children’s Guardian [2017] NSWCATAD 134, be set aside. The Tribunal purported to confirm the decision of the Children’s Guardian, the defendant, made on 12 January 2016 to cancel the plaintiff’s working with children check clearance under the Child Protection (Working with Children) Act 2012 (NSW) (the Act).

2. The defendant consents to the orders sought by the plaintiff. It is accordingly necessary for me to determine whether it is appropriate to make the orders for which both parties contend.

3. In summary, the parties agreed that the Tribunal denied the plaintiff procedural fairness and that, accordingly, its decision was unlawful and ought be set aside. For the reasons that follow, I am satisfied of these matters and that it is appropriate to set the decision aside and make consequential orders that the matter before the Tribunal be remitted to the Tribunal to be determined according to law.

The facts

4. In light of the error alleged, it is neither necessary nor appropriate to address the facts in any detail. The following summary suffices.

5. On 18 October 2013 the Children’s Court made an order under s 79 of the Children and Young Persons (Care and Protection) Act 1998 (NSW), the effect of which was to place the natural child of the plaintiff and her spouse under the parental responsibility of the Minister, who placed the child with the paternal grandmother and her partner. The order was based, at least in part, on the finding that the father abused the child and that the plaintiff did not act so as to protect the child from abuse.

6. On 20 October 2013 the plaintiff applied for a working with children check clearance, which was granted on 9 February 2014.

7. In November 2013 the plaintiff was employed as a community support worker at Minimbah Challenge Inc, which provided support services to people with disabilities. She did not work directly with children.

8. On 17 August 2015 the defendant was informed by the Department of Family and Community Services (the Department) of the orders made by the Children’s Court. As a consequence, the Department conducted a risk assessment of the plaintiff, as the holder of a clearance, following which, on 1 October 2015, the defendant issued an interim bar and notice of proposed cancellation of her clearance pursuant to s 17 of the Act.

9. On 12 January 2016 the defendant, as required by s 23 of the Act, notified the plaintiff of the cancellation of her clearance. By application filed in the Tribunal on 12 February 2016 the plaintiff sought administrative review of the cancellation pursuant to s 27 of the Act.

10. The parties filed evidence and written submissions. The defendant indicated that it neither consented to, nor opposed, the relief sought by the plaintiff in the Tribunal. On 25 August 2016 the Tribunal directed that the matter be determined on the evidence and submissions filed unless it required the applicant to give evidence or the parties to make oral submissions.

11. At all times, the plaintiff's position was that she wished to be heard orally if the Tribunal was inclined to reject her application. This position was communicated to the Tribunal on each occasion on which the matter was listed before it. In submissions filed 13 September 2016, the plaintiff’s representative said at [13]:

"The Tribunal has directed that this matter be determined on the papers unless the Tribunal, upon considering the papers, forms the view that it needs to convene a hearing. Both parties agree with that approach. In particular, the applicant respectfully urges that there is sufficient material—including three unchallenged expert reports that are favourable to the applicant—for the Tribunal to resolve the matter on the papers by setting the cancellation aside. On the other hand, if the Tribunal forms the view that it may be satisfied that the applicant poses a risk to children then, as a matter of natural justice, it will be necessary to hold a hearing."

12. The Tribunal listed the matter for an oral hearing on 28 October 2016. At that hearing the Tribunal raised two issues with the parties: the application of M v M (1988) 166 CLR 69 and whether s 30(1A) of the Act applied. The substance of these issues is not material for present purposes.

13. At the hearing on 28 October 2016, the plaintiff requested the opportunity to make further submissions in the event that the Tribunal intended to dismiss the application or uphold the cancellation of the plaintiff's clearance, in the following terms:

"And this is a case where, in essence, the evidence is more filed by us than by the respondent. And we say, of course, there's not enough to form that risk. But if you have a concern, we would respond to it; that was the purpose of having the option of a further hearing, not to re-open our case with additional material."

14. At the conclusion of the hearing on 28 October 2016, the Tribunal directed that further written submissions on the application of M v M and s 30(1A) of the Act be filed by 28 November 2016. No further oral hearing took place.

15. On 28 April 2017 the Tribunal handed down its decision and reasons, confirming the defendant’s decision to cancel the clearance. At no time did the Tribunal give the plaintiff notice that it proposed to confirm the decision under review without hearing from the plaintiff. There is no record that the Tribunal made an order under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) (set out in full below) dispensing with a hearing or that it afforded the parties the opportunity of making submissions about the proposed order as required by s 50(3) (set out in full below). Indeed the transcript of the hearing on 28 October 2016 indicates that no such order was made and no such opportunity given. Counsel for both parties confirmed in the hearing before me that no such order was made by the Tribunal.

Relevant statutory provisions

16. It is not necessary to set out all of the statutory provisions referred to in the narrative above. For present purposes, the principal provision of relevance is s 50 of the CAT Act which relevantly provides:

“50   When hearings are required

(1)  A hearing is required for proceedings in the Tribunal except:

. . .

(c)  if the Tribunal makes an order under this section dispensing with a hearing, or

. . .

(2)  The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.

(3)  The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first:

(a)  afforded the parties an opportunity to make submissions about the proposed order, and

(b)  taken any such submissions into account.

(4)  The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.

(5)  This section does not prevent the Tribunal from holding a hearing even if it is not required.”

Consideration

The principal relief sought

17. I am satisfied on the basis of the narrative set out above that the Tribunal failed to comply with s 50 of the CAT Act and accordingly failed to conduct a hearing on the merits of the case when it was required to do so. The Tribunal was entitled to dispense with a hearing only if it had first afforded the parties an opportunity to make submissions about the proposed order; taken such submissions into account; and made an order under s 50(2) of the CAT Act. Although the transcript recorded that the Tribunal proposed to limit the oral hearing to the two matters which it identified as being of concern (the application of M v M and s 30(1A)), the Tribunal did not inform the parties that it intended to dispense with an oral hearing even though it decided to affirm the decision under review. Nor did the Tribunal make an order under s 50(2) of the CAT Act. The Tribunal’s failure to make such an order constituted an error of law, which vitiated its decision. In these circumstances, the decision must be set aside and the matter remitted to the Tribunal.

18. The Tribunal’s failure to inform the plaintiff that it proposed to affirm the decision under review and give her an opportunity to address any matters of concern also amounted to a denial of procedural fairness. However, it is not necessary to expand on this ground as the Tribunal’s non-compliance with s 50 of the CAT Act is sufficient to vitiate its decision.

The composition of the Tribunal to which the applicant’s application ought be remitted

19. The parties jointly sought an order that, if the matter is remitted to the Tribunal, it be heard by a differently constituted Tribunal.

20. For the reasons set out above, I consider that the Tribunal failed to undertake the statutory task required of it and misapprehended the requirements of s 50 of the CAT Act. There are at least three potential risks that might ensue if the matter were remitted and listed before the same Tribunal. First, the plaintiff might have grounds for an apprehension of bias and may feel that she would not obtain the fresh hearing to which I have found she is entitled. Secondly, there may be a risk or at least the appearance of risk of so-called compensatory bias: see K Mason, “Unconscious Judicial Prejudice” (2001) 75 ALJ 676. Thirdly, there is a risk that the members might feel obliged to recuse themselves if the matter were remitted to the Tribunal and allocated to them. I have considered these matters, as well as the fact that both parties seek such an order: Seltsam Pty Limited v Ghaleb [2005] NSWCA 208 at [12] per Mason P, Ipp JA agreeing at [141]; see also Basten JA at [239]. The power to order that a matter be remitted to a differently constituted Tribunal is to be exercised cautiously, I am satisfied that it is appropriate to make such an order in the present case.

Application for non-publication and pseudonym orders

21. The parties have also sought, by consent, orders pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), on the grounds provided by s 8(1)(a) and (e), that the name and address of the plaintiff and any child referred to in the evidence before this Court or the Tribunal and 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; and that the plaintiff be referred to as CLD. There is a strong public interest in the non-disclosure of the identity of a child who has been the victim of sexual abuse. Moreover guardianship arrangements concerning children are also matters in respect of which there is a public interest in non-disclosure of the identity of the child.

22. It may be that the statutory prohibition on publication in s 578A of the Crimes Act 1900 (NSW) applies. The effect of the prohibition is to prevent “a person” from publishing the name of the plaintiff. However, it would not prevent the identification of the plaintiff in my reasons for judgment since the Court is not a “person”: see the authorities summarised in Attorney General of NSW v Huckstadt (No 2) [2017] NSWSC 595 at [40]-[47]. Section 15A of the Children (Criminal Proceedings) Act 1987 (NSW) also provides some protection because it limits certain means of publication of names which associate a child with criminal proceedings. However the means of publication specified in the section do not cover all publication. In these circumstances I am satisfied, pursuant to s 8(1)(e) of the Court Suppression and Non-publication Orders Act, that it is necessary in the public interest for the non-publication and pseudonym orders to be made. I am also satisfied that the public interest in not revealing the identity of the plaintiff so as to protect from publication the identity of her child significantly outweighs the public interest in open justice. The effect on the public interest in open justice is, in the present case, relatively slight in any event since all that is not revealed is material which would tend to identify the child.

23. As I am satisfied that the order should be made on the ground in s 8(1)(e), it is not necessary for me to consider the ground in s 8(1)(a).

24. I am required by s 12 of the Court Suppression and Non-publication Orders Act, when deciding on the period for which the order is to operate, to ensure that the order operates for no longer than is reasonably necessary to achieve the purpose for which it is made. In the circumstances of the present case, and having regard to the ground on the basis of which the order is made, I do not consider that the order should be limited as to time.

Orders

25. For the reasons given above, I make the following orders:

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:

1. 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

2. the name and address of any other person whose publication would identify their names and addresses

3. 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.

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Decision last updated: 14 July 2017