Commission for Children and Young People v FZ

The Commission for Children and Young People (the Commission) appealed to the Court of Appeal of New South Wales against a decision of the primary judge concerning the admission of evidence in proceedings before the Administrative Decisions Tribunal (the Tribunal). The dispute centred on whether the Tribunal had denied a party procedural fairness by admitting evidence from a key witness who was not present for cross-examination.

The Court of Appeal was required to determine whether the Tribunal had erred in admitting the evidence of the key witness without that witness being available for cross-examination, and consequently, whether the primary judge was correct in finding that procedural fairness had been denied. A further issue was the onus of proof in proceedings before the Tribunal, specifically whether the Commission bore the onus of proving particular incidents it raised, or if the onus remained on the applicant to satisfy the Tribunal that they posed no risk to children.

The Court of Appeal upheld the primary judge's finding that procedural fairness had been denied. It reasoned that while the Tribunal is not bound by the strict rules of evidence, the admission of evidence from a witness who was not available for cross-examination, particularly when that evidence was crucial to the Commission's case, could amount to a denial of procedural fairness. The Court clarified that the onus remains on the applicant to satisfy the Tribunal that they are no risk to children, and the Commission does not bear the onus of proving specific incidents it raises.

The Court granted leave to appeal, directed the appellant to file a notice of appeal, but ultimately dismissed the appeal. The Court ordered that the appellant pay the respondents' costs and confirmed the primary judge's orders regarding anonymity.