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ECH v Children's Guardian

ECH v Children's Guardian

Case [2020] NSWCATAD 52 10 March 2020

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Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: ECH v Children’s Guardian [2020] NSWCATAD 52
Hearing dates: 7 February 2020
Date of orders: 07 February 2020
Decision date: 10 March 2020
Jurisdiction: Administrative and Equal Opportunity Division
Before: J Lonsdale, Senior Member
P Foreman, General Member
Decision:
(1) The Tribunal orders, pursuant to s 59 of the Administrative Review Act, that the respondent is not required to lodge copies of the material ("Confidential Material") annexed to the confidential affidavit ("Confidential Affidavit") filed in support of the application heard on 7 February 2020.
(2) The Tribunal orders, pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act, the publication of the Confidential Material and the Confidential Affidavit or matters contained in the Confidential Material or the Confidential Affidavit, is prohibited.
(3) The Tribunal orders, pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act, the disclosure of the Confidential Material and the Confidential Affidavit or matters contained in the Confidential Material or the Confidential Affidavit is restricted to the respondent, the legal representatives of the respondent and the Tribunal.
(4) The Tribunal orders, pursuant to s 64(1)(b), s 64(1)(c) and s 64(1)(d) of the Civil and Administrative Tribunal Act, the recording and transcript of the preliminary hearing held on 7 February 2020, including any evidence given during the preliminary hearing, are not to be published or disclosed to the applicant or the public.
(5) The Tribunal declines to receive the Confidential Material or the Confidential Affidavit as evidence in the substantive hearing of the applicant's application to the Tribunal, except to the extent the respondent makes the Confidential Material and the Confidential Affidavit available to the applicant.

Catchwords:
Working with children check clearance – confidentiality and relying on evidence – procedural fairness

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW)
Child Protection (Working with Children) Act 2012 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Evidence Act 1995 (NSW)

Cases Cited:
Bropho v Western Australia (1990) 171 CLR 1
Coco v The Queen (1994) 179 CLR 427
Commissioner of Police, New South Wales Police Force [2020] NSWCATAD 9
CYL v YZA [2017] NSWCATAP 105
Manning v Nicopoulos v Commissioner for Corrective Services [2004] NSWSC 652
Lee v New South Wales Crime Commission [2013] HCA 39
Manning v Commissioner of Police [2020] NSWCATAD 9
Potter v Minahan (1908) 7 CLR 277
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1

Texts Cited:
None cited

Category: Procedural and other rulings
Parties: ECH (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
I Fraser (Respondent)
Solicitors:
Applicant (Self Represented)
Crown Solicitor (Respondent)

File Number(s): 2019/00343494
Publication restriction: In addition to the orders set out above, with the exception of expert witnesses and officers of government agencies, pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. Sections of these…

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 ECH v Children's Guardian

Details

AGLC: ECH v Children's Guardian [2020] NSWCATAD 52
Case: [2020] NSWCATAD 52
Decision Date: 10 March 2020

CaseChat Overview and Summary

The matter before the Civil and Administrative Tribunal involved a dispute between ECH and the Children's Guardian. ECH sought to challenge a decision by the Children's Guardian to refuse to grant them a working with children check clearance. The dispute centred around the confidentiality of certain material provided by the Children's Guardian, the reliance on this evidence, and the procedural fairness of the process.

The legal issues before the court included the admissibility and confidentiality of the confidential material provided by the Children's Guardian, whether the confidential material could be relied upon by the Children's Guardian, and whether the process was fair. The court had to consider whether the confidential material could be used in the proceedings and whether the process complied with the principles of natural justice and procedural fairness.

The court held that the confidential material should not be disclosed to the applicant or the public, and that it could only be used by the Children's Guardian in the proceedings if it was made available to the applicant. The court found that the process was fair, and that the Children's Guardian was entitled to rely on the confidential material in making their decision. The court also found that the recording and transcript of the preliminary hearing should not be disclosed to the applicant or the public.

The court made several orders, including prohibiting the publication or disclosure of the confidential material or affidavit, restricting disclosure to certain parties, and prohibiting the publication or disclosure of the recording and transcript of the preliminary hearing. The court declined to receive the confidential material or affidavit as evidence in the substantive hearing, except to the extent that it was made available to the applicant.

Orders

Orders of the court

(1) The Tribunal orders, pursuant to s 59 of the Administrative Review Act, that the respondent is not required to lodge copies of the material ("Confidential Material") annexed to the confidential affidavit ("Confidential Affidavit") filed in support of the application heard on 7 February 2020.

(2) The Tribunal orders, pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act, the publication of the Confidential Material and the Confidential Affidavit or matters contained in the Confidential Material or the Confidential Affidavit, is prohibited.

(3) The Tribunal orders, pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act, the disclosure of the Confidential Material and the Confidential Affidavit or matters contained in the Confidential Material or the Confidential Affidavit is restricted to the respondent, the legal representatives of the respondent and the Tribunal.

(4) The Tribunal orders, pursuant to s 64(1)(b), s 64(1)(c) and s 64(1)(d) of the Civil and Administrative Tribunal Act, the recording and transcript of the preliminary hearing held on 7 February 2020, including any evidence given during the preliminary hearing, are not to be published or disclosed to the applicant or the public.

(5) The Tribunal declines to receive the Confidential Material or the Confidential Affidavit as evidence in the substantive hearing of the applicant's application to the Tribunal, except to the extent the respondent makes the Confidential Material and the Confidential Affidavit available to the applicant.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

ECH v Children's Guardian [2020] NSWCATAD 52

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 10 of 10 shown

Manning v Commissioner of Police, New South Wales Police Force
[2020] NSWCATAD 9 Para 41

…Unlike the recent decision of the Tribunal in Manning v Commissioner of Police [2020] NSWCATAD 9 at [27], where orders as to confidentiality were made and the respondent proposed to file and serve an edited version of the material with the confidential parts removed, in this matter it is proposed the applicant will…
Lee v New South Wales Crime Commission
[2013] HCA 39 Para 40

…Bropho v Western Australia (1990) 171 CLR 1, 18; Coco v The Queen (1994) 179 CLR 427, 436–437; Lee v New South Wales Crime Commission [2013] HCA 39 [313]). We do not consider that s 30(1) of the CPWC Act requires the Tribunal to consider material in a hearing on which the respondent may seek to rely without rega…
FZ v Commissioner for Children and Young People
[2010] NSWSC 1144 Para 47

…We are also aware of the decision in FZ v Commissioner for Children and Young People [2010] NSWSC 1144 (FZ) in which the plaintiff sought orders setting aside a decision of a tribunal on the basis that (amongst other things) the tribunal failed to afford the plaintiff procedural fairness by admitting into evidence c…
Lloyd v Hill
[2004] NSWSC 652

…olice, New South Wales Police Force [2020] NSWCATAD 9 CYL v YZA [2017] NSWCATAP 105 Manning v Nicopoulos v Commissioner for Corrective Services [2004] NSWSC 652 Lee v New South Wales Crime Commission [2013] HCA 39 Manning v Commissioner of Police [2020] NSWCATAD 9 Potter v Minahan (1908) 7 CLR 277 Re Minister for I…
Nicopoulos v Commissioner for Corrective Services
[2004] NSWSC 562 Para 46

…We are aware of the decision in Nicopoulos v Commissioner for Corrective Services [2004] NSWSC 562 (Nicopoulos) in which a solicitor commenced proceedings in respect of “alleged breaches of natural justice” after being denied access to corrective facilities pursuant to legislation which empowered the Commissioner f…
Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam
[2003] HCA 6 Para 48

…In Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 at [37], Gleeson CJ said the “concern of the law is to avoid practical injustice”.…
Coco v the Queen
[1994] HCA 15 Para 40

…unless clear words are used ( Potter v Minahan (1908) 7 CLR 277, 304; Bropho v Western Australia (1990) 171 CLR 1, 18; Coco v The Queen (1994) 179 CLR 427, 436–437; Lee v New South Wales Crime Commission [2013] HCA 39 [313]). We do not consider that s 30(1) of the CPWC Act requires the Tribunal to consider material i…
Kioa v West
[1985] HCA 81 Para 42

…In Kioa v West (1985) 150 CLR 550 at 582 (Kioa), Mason J said:…
Potter v Minahan
[1908] HCA 63 Para 40

…the CPWC Act. The Courts will not interpret legislation as abrogating fundamental rights unless clear words are used ( Potter v Minahan (1908) 7 CLR 277, 304; Bropho v Western Australia (1990) 171 CLR 1, 18; Coco v The Queen (1994) 179 CLR 427, 436–437; Lee v New South Wales Crime Commission [2013] HCA 39 [313]). W…
Bropho v Western Australia
[1990] HCA 24 Para 40

…s will not interpret legislation as abrogating fundamental rights unless clear words are used ( Potter v Minahan (1908) 7 CLR 277, 304; Bropho v Western Australia (1990) 171 CLR 1, 18; Coco v The Queen (1994) 179 CLR 427, 436–437; Lee v New South Wales Crime Commission [2013] HCA 39 [313]). We do not consider that s 30(1) of the CP…

Legislation cited in this decision · 4

Administrative Decisions Review Act 1997 (NSW)
1 mention (from Para 3)
Child Protection (Working with Children) Act 2012 (NSW)
1 mention (from Para 1)
Civil and Administrative Tribunal Act 2013 (NSW)
1 mention (from Para 3)
Evidence Act 1995 (Cth)
1 mention

Medium Neutral Citation:	ECH v Children’s Guardian [2020] NSWCATAD 52
Hearing dates:	7 February 2020
Date of orders:	07 February 2020
Decision date:	10 March 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J Lonsdale, Senior Member P Foreman, General Member
Decision:	(1) The Tribunal orders, pursuant to s 59 of the Administrative Review Act, that the respondent is not required to lodge copies of the material ("Confidential Material") annexed to the confidential affidavit ("Confidential Affidavit") filed in support of the application heard on 7 February 2020. (2) The Tribunal orders, pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act, the publication of the Confidential Material and the Confidential Affidavit or matters contained in the Confidential Material or the Confidential Affidavit, is prohibited. (3) The Tribunal orders, pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act, the disclosure of the Confidential Material and the Confidential Affidavit or matters contained in the Confidential Material or the Confidential Affidavit is restricted to the respondent, the legal representatives of the respondent and the Tribunal. (4) The Tribunal orders, pursuant to s 64(1)(b), s 64(1)(c) and s 64(1)(d) of the Civil and Administrative Tribunal Act, the recording and transcript of the preliminary hearing held on 7 February 2020, including any evidence given during the preliminary hearing, are not to be published or disclosed to the applicant or the public. (5) The Tribunal declines to receive the Confidential Material or the Confidential Affidavit as evidence in the substantive hearing of the applicant's application to the Tribunal, except to the extent the respondent makes the Confidential Material and the Confidential Affidavit available to the applicant.
Catchwords:	Working with children check clearance – confidentiality and relying on evidence – procedural fairness
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	Bropho v Western Australia (1990) 171 CLR 1 Coco v The Queen (1994) 179 CLR 427 Commissioner of Police, New South Wales Police Force [2020] NSWCATAD 9 CYL v YZA [2017] NSWCATAP 105 Manning v Nicopoulos v Commissioner for Corrective Services [2004] NSWSC 652 Lee v New South Wales Crime Commission [2013] HCA 39 Manning v Commissioner of Police [2020] NSWCATAD 9 Potter v Minahan (1908) 7 CLR 277 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1
Texts Cited:	None cited
Category:	Procedural and other rulings
Parties:	ECH (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: I Fraser (Respondent) Solicitors: Applicant (Self Represented) Crown Solicitor (Respondent)
File Number(s):	2019/00343494
Publication restriction:	In addition to the orders set out above, with the exception of expert witnesses and officers of government agencies, pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. Sections of these…