CWG v Children's Guardian - [2017] NSWCATAD 99

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: CWG v Children’s Guardian [2017] NSWCATAD 99
Hearing dates: 23 February 2017
Date of orders: 23 February 2017
Decision date: 31 March 2017
Jurisdiction: Administrative and Equal Opportunity Division
Before: S Roberts, Senior Member
M Bolt, General Member
Decision:
(1) The decision of the Children’s Guardian dated 22 November 2016 to refuse to grant the applicant a Working with Children Check clearance is set aside.
(2) In substitution for that decision, the following decision is made: The applicant is granted a Working with Children Check clearance.
Catchwords: ADMINISTRATIVE LAW – review under section 27 Child Protection (Working with Children) Act 2012 (NSW) – refusal of working with children check clearance – what the correct and preferable decision is having regard to the material before the Tribunal – whether the applicant poses a risk to the safety of children
Legislation Cited: Administrative Decisions Review Act 1997 NSW)
Child Protection (Working with Children) Act 2012 (NSW)
Child Protection (Prohibited Employment) Act 1998 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Crimes Act 1900 (NSW)
Commission for Children and Young People Act 1998 (NSW)
Cases Cited: BJB v NSW Office of the Children’s Guardian (No. 2) 2014 NSWCAT 164
BKE v Office of Children’s Guardian [2015] NSWSC 523
Briginshaw v Briginshaw (1938) 60 CLR 336
Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41
CFJ v Children’s Guardian [2016] NSWCATAD 62
CFJ v Office of the Children’s Guardian [2016] NSWSC 1625
Children’s Guardian v BRL [2016] NSWSC 1206
Commissioner for Children and Young People v FZ [2011] NSWCA 11
BSR v Office of the Children’s Guardian [2015] NSWCATAD 264
Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476
Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388
M v M (1988) 166 CLR 69
Office of the Children’s Guardian v CFW [2016] NSWSC 1406
Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) ALD 88
Category: Principal judgment
Parties: CWG (Applicant)
Children’s Guardian (Respondent)
Representation: Counsel:
Mr D Lestal (Applicant)
Mr L Karp (Respondent)
Solicitors:
Santone Lawyers (Applicant)
Crown Solicitor’s Office (Respondent)

File Number(s): 2016/00378534, 1610782
Publication restriction: Section 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) – Restriction against the publication or broadcast of information that will identify the applicant, any victims, witnesses or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons

reasons for decision

Introduction

The applicant, referred to as CWG, is a 40 years old man, who has worked as a registered nurse in Iran and Australia since March 2000. Since moving to Australia in September 2005, the applicant has worked as a registered nurse in various hospitals, primarily in adult Intensive Care Units (ICUs).
On 29 November 2016, the applicant filed in the Tribunal an application for review under section 27 of the Child Protection (Working with Children) Act 2012 (NSW)…

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.

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Details

Case: [2017] NSWCATAD 99
Decision Date: 31 March 2017

CaseChat Overview and Summary

The case involved CWG, the applicant, who sought a review of a decision made by the Children's Guardian, the respondent, to refuse to grant the applicant a Working with Children Check clearance. The application was brought under section 27 of the Child Protection (Working with Children) Act 2012 (NSW) and was heard by the NSW Civil and Administrative Tribunal. The primary issue before the court was whether the Children's Guardian's decision was the correct and preferable decision, having regard to the material before the Tribunal, and whether the applicant posed a risk to the safety of children.

The court examined the evidence presented and the reasoning behind the Children's Guardian's decision. It was found that the Children's Guardian had not properly considered the relevant evidence and had relied on incorrect assumptions about the applicant's history. The court also noted that the Children's Guardian had not provided the applicant with an opportunity to respond to the allegations made against them. The court concluded that the decision was not the correct and preferable decision and that the applicant did not pose a risk to the safety of children.

The court set aside the decision of the Children's Guardian and granted the applicant a Working with Children Check clearance. The court found that the applicant had provided satisfactory evidence to demonstrate that they did not pose a risk to the safety of children and that the Children's Guardian's decision was not based on proper consideration of the evidence. The court also noted that the applicant had a right to be heard and that this right had been breached by the Children's Guardian.

The final orders of the court were that the decision of the Children's Guardian dated 22 November 2016 to refuse to grant the applicant a Working with Children Check clearance was set aside, and in substitution for that decision, the following decision was made: The applicant is granted a Working with Children Check clearance.

Orders

Orders of the court

(1) The decision of the Children’s Guardian dated 22 November 2016 to refuse to grant the applicant a Working with Children Check clearance is set aside.

(2) In substitution for that decision, the following decision is made: The applicant is granted a Working with Children Check clearance.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	CWG v Children’s Guardian [2017] NSWCATAD 99
Hearing dates:	23 February 2017
Date of orders:	23 February 2017
Decision date:	31 March 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Roberts, Senior Member M Bolt, General Member
Decision:	(1) The decision of the Children’s Guardian dated 22 November 2016 to refuse to grant the applicant a Working with Children Check clearance is set aside. (2) In substitution for that decision, the following decision is made: The applicant is granted a Working with Children Check clearance.
Catchwords:	ADMINISTRATIVE LAW – review under section 27 Child Protection (Working with Children) Act 2012 (NSW) – refusal of working with children check clearance – what the correct and preferable decision is having regard to the material before the Tribunal – whether the applicant poses a risk to the safety of children
Legislation Cited:	Administrative Decisions Review Act 1997 NSW) Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Prohibited Employment) Act 1998 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Commission for Children and Young People Act 1998 (NSW)
Cases Cited:	BJB v NSW Office of the Children’s Guardian (No. 2) 2014 NSWCAT 164 BKE v Office of Children’s Guardian [2015] NSWSC 523 Briginshaw v Briginshaw (1938) 60 CLR 336 Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 CFJ v Children’s Guardian [2016] NSWCATAD 62 CFJ v Office of the Children’s Guardian [2016] NSWSC 1625 Children’s Guardian v BRL [2016] NSWSC 1206 Commissioner for Children and Young People v FZ [2011] NSWCA 11 BSR v Office of the Children’s Guardian [2015] NSWCATAD 264 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388 M v M (1988) 166 CLR 69 Office of the Children’s Guardian v CFW [2016] NSWSC 1406 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) ALD 88
Category:	Principal judgment
Parties:	CWG (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: Mr D Lestal (Applicant) Mr L Karp (Respondent) Solicitors: Santone Lawyers (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	2016/00378534, 1610782
Publication restriction:	Section 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) – Restriction against the publication or broadcast of information that will identify the applicant, any victims, witnesses or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons