CXR v Children's Guardian

[2017] NSWCATAD 296

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CXR v Children’s Guardian [2017] NSWCATAD 296
Hearing dates:	27 September 2017
Date of orders:	27 September 2017
Decision date:	27 September 2017
Before:	J Anderson, Senior Member D Crowley General Member
Decision:	1. The applicant’s application filed on 9 January 2017 for an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 is dismissed 2. The disclosure of the name of the applicant and any victim or child referred to in these reasons is prohibited
Catchwords:	ADMINISTRATIVE LAW – child protection – working with children check clearance – where applicant is a disqualified person and bears the onus of rebutting the presumption that he poses a risk to the safety of children – where applicant filed no evidence and failed to appear at hearing - application dismissed for want of prosecution.
Legislation Cited:	Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013
Category:	Principal judgment
Parties:	CXR (Applicant) NSW Office of the Children’s Guardian (Respondent)
Representation:	No appearance of the applicant Counsel: Mr M Kalyk (Respondent)
File Number(s):	2017/00012320
Publication restriction:	The disclosure of the name of the applicant and any victim or child referred to in these reasons is prohibited

REASONS FOR DECISION

Background

1. On 25 November 2016, the applicant (known for the purposes of the application as “CXR”) applied to the Children’s Guardian (the respondent) for a working with children check clearance.

2. On 19 December 2016, the respondent notified the applicant that he is a disqualified person and as such he must not be granted a working with children check clearance. His disqualification arises from his convictions for aggravated rape (2 charges), aggravated rape and aggravated assault with intent to rape and aggravated indecent assault. The offences involved two separate victims on two separate dates in 1987.

3. On 9 January 2017, the applicant made an application to the Tribunal for an order that he is not to be treated as a disqualified person (an “enabling order”). The matter was listed for directions hearings on 16 February 2017, 3 April 2017, 12 April 2017, 20 July 17 and 3 August 2017.

4. It is noted that on 3 April 2017 the applicant failed to attend the directions hearing. The member conducting the directions hearing indicated that the applicant was to provide an explanation for his non-appearance; if he does not, the matter would be dismissed.

5. At a directions hearing on 20 July 2017, the applicant advised the Tribunal that he did not wish to file evidence.

6. The matter was listed for hearing on 23 August 2017. However, on 3 August 2017, the hearing was vacated and a new hearing date was subsequently set, namely, 27 September 2017 at 10.30am at Griffith Courthouse.

7. At the commencement of proceedings on 27 September 2017, the respondent informed the Tribunal that an officer (or representative) of the respondent on 29 August 2017 had contact with the applicant, who indicated he would be in attendance at the hearing on 27 September 2017. In addition, the Tribunal was informed by the Griffith Court Registry that the applicant had contacted the Registry the previous day (26 September 2017) to inquire if the matter was listed for hearing. During that conversation, the applicant was informed that the matter was listed for hearing.

8. Shortly after 10.30am on 27 September 2017, the matter was called a number of times by officers of the court. The applicant did not present himself to the courtroom where the hearing was to be conducted.

9. At approximately 10.50am Senior Member Anderson telephoned the applicant on the mobile telephone number the applicant had listed on his application. During the very brief conversation, during which the Senior Member advised that it was the NSW Civil & Administrative Tribunal calling in relation to the hearing, the applicant said the following words:

“Who the fuck is this”? and

“Go away!”

10. The applicant then terminated the call.

11. The Tribunal adjourned for approximately thirty minutes. On the resumption of proceedings, Counsel for the respondent submitted that given the apparent intention of the applicant not to participate, the respondent would not oppose the Tribunal dismissing his application.

12. The Tribunal notes that this matter has been the subject of five directions hearings since the applicant lodged his application on 9 January 2017. The Tribunal was satisfied that the applicant had reasonable notice of the hearing, and had ample opportunity to prepare his application for hearing. He has failed to file any evidence or submissions since the lodging of his application. This is of relevance because in an application under section 28 of the Child Protection (Working with Children) Act 2012, the applicant bears the onus of rebutting the statutory presumption that he poses a risk to the safety of children.

13. Pursuant to section 55 (1) of the Civil and Administrative Tribunal Act 2013, the Tribunal may dismiss the proceedings at any stage if the applicant has failed to appear; or if the Tribunal considers that there has been a want of prosecution in the proceedings.

14. The guiding principle to be applied to practice and procedure in the Tribunal “is to facilitate the just, quick and cheap resolution of the real issues in the proceedings” consistent with the objects and principles under the Act. Civil and Administrative Tribunal Act 2013, s 36.

15. The Tribunal has a responsibility to hear matters expeditiously. In this matter, the Tribunal had made arrangements for the hearing to be held in regional New South Wales in order to accommodate the applicant’s individual circumstances. It involved the travel and associated costs of two Tribunal members conducting a hearing outside of the Tribunal’s Sydney Registry. The applicant has not provided any explanation for his non-attendance. On the contrary, it is apparent the applicant has no intention of appearing and no intention of prosecuting his application. This is evidenced by his remarks in the earlier telephone call and his failure to provide any evidence and/or submissions since the lodging of his application on 9 January 2017. On the material before it, the Tribunal was satisfied that the applicant’s application should be dismissed for want of prosecution pursuant to section 55(1)(d) of the Civil and Administrative Tribunal Act 2013.

ORDERS

1. The applicant’s application filed on 9 January 2017 for an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 is dismissed pursuant to section 55(1)(d) of the NSW Civil and Administrative Tribunal Act 2013.

2. The disclosure of the name of the applicant and any victim or child referred to in these reasons is prohibited.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 06 October 2017