Efy v Children's Guardian - [2020] NSWCATAD 178

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: EFY v Children’s Guardian [2020] NSWCATAD 178
Hearing dates: On the papers
Date of orders: 9 July 2020
Decision date: 09 July 2020
Jurisdiction: Administrative and Equal Opportunity Division
Before: E Connor, Senior Member
S Davison, General Member
Decision:
The proceedings are dismissed pursuant to section 55 (1) (b) of the Civil and Administrative Tribunal Act 2013 (NSW).

Catchwords:
ADMINISTRATIVE LAW - Child Protection - Cancellation of Working with Children Check clearance - Whether applicant is entitled to seek further review - Whether refusal of Children’s Guardian to allow early application constitutes refusal of clearance – Application of section 66(1) of Administrative Decisions Review Act 1997 on embargo provision

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW)
Child Protection (Working with Children) Act 2012 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Ombudsman Act 1974 (NSW)

Cases Cited:
CFJ v Children’s Guardian [2016] NSWCATAD 62
CFJ v Office of the Children’s Guardian [2016] NSWSC 1625
ECJ v Children’s Guardian [2020] NSWCATAD 28

Category: Principal judgment
Parties: EFY (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
P Singleton (Respondent)
Solicitors:
Applicant (Self Represented)
Crown Solicitor (Respondent)

File Number(s): 2020/00078317
Publication restriction: Section 64(1) Civil and Administrative Tribunal Act 2013. Restriction on publication of information that will identify the applicant, any children, or victims and evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons without leave of the Tribunal.

APPLICATION FOR SUMMARY DISMISSAL BY CHILDREN’S GUARDIAN

REASONS FOR DECISION

Decision

The applicant applied to the Tribunal on 11 March 2020 for review of a decision of the Children’s Guardian on 16 October 2015 to cancel his Working with Children Check (WCCC) clearance.
The Children’s Guardian applied for a summary dismissal of the application on the basis that the decision made by the Children’s Guardian on 16 October 2015 has already been the subject of review by this Tribunal.
We have found that the Tribunal has previously conducted a review of the decision of the Children’s Guardian made on 16 October 2015 to cancel the applicant’s WWCC clearance and accordingly have dismissed his application.

Background

The applicant, referred to as EFY in these proceedings, was a teacher at an independent school that alleged that in 2014, using two laptops issued to him by the school, he accessed pornographic internet sites depicting females who appeared to be less than 18 years old engaging in sexual acts and/or exposing their breasts and genitalia.
The school notified the Ombudsman of its concerns and provided a report in accordance with s 25C of the Ombudsman Act 1974 (NSW) and in March 2015 the Ombudsman disclosed the report to the Children’s Guardian.
Sometime during or after October 2015 the school concluded in an undated ‘final investigation report’ that the applicant had accessed ‘young person pornography’ and that this constituted sexualised behaviour towards and involving a class of young people that he ought to have known was unacceptable in…

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 Efy v Children's Guardian

Details

AGLC: EFY v Children's Guardian [2020] NSWCATAD 178
Case: [2020] NSWCATAD 178
Decision Date: 09 July 2020

CaseChat Overview and Summary

In the matter of Efy versus the Children's Guardian, the applicant sought to challenge the decision of the Children's Guardian to cancel their Working with Children Check clearance. The application was brought before the Civil and Administrative Tribunal of New South Wales, with the applicant seeking a review of the decision and a reinstatement of their clearance. The crux of the dispute lay in the interpretation of the provisions of the Administrative Decisions Review Act 1997, particularly section 66(1), and whether the refusal by the Children’s Guardian to permit an early application for review constituted a refusal of the clearance itself.

The primary legal issues before the tribunal were twofold. Firstly, whether the applicant was entitled to seek further review of the decision given the statutory timeframes and the embargo provision in section 66(1) of the Administrative Decisions Review Act 1997. Secondly, the tribunal needed to determine if the refusal by the Children’s Guardian to allow an early application for review could be construed as a refusal of the clearance, thereby triggering the right to seek judicial review. The tribunal was tasked with interpreting the statutory language and applying it to the facts of the case to ascertain the appropriate course of action.

The tribunal dismissed the application, holding that the applicant was not entitled to further review under the circumstances presented. It was determined that the Children’s Guardian’s refusal to allow an early application for review did not equate to a refusal of the clearance, and thus did not activate the provisions of section 66(1) of the Administrative Decisions Review Act 1997. The tribunal found that the applicant had not met the statutory requirements for seeking further review and consequently dismissed the proceedings pursuant to section 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW).

Orders

Orders of the court

The proceedings are dismissed pursuant to section 55 (1) (b) of the Civil and Administrative Tribunal Act 2013 (NSW).

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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	EFY v Children’s Guardian [2020] NSWCATAD 178
Hearing dates:	On the papers
Date of orders:	9 July 2020
Decision date:	09 July 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	E Connor, Senior Member S Davison, General Member
Decision:	The proceedings are dismissed pursuant to section 55 (1) (b) of the Civil and Administrative Tribunal Act 2013 (NSW).
Catchwords:	ADMINISTRATIVE LAW - Child Protection - Cancellation of Working with Children Check clearance - Whether applicant is entitled to seek further review - Whether refusal of Children’s Guardian to allow early application constitutes refusal of clearance – Application of section 66(1) of Administrative Decisions Review Act 1997 on embargo provision
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Ombudsman Act 1974 (NSW)
Cases Cited:	CFJ v Children’s Guardian [2016] NSWCATAD 62 CFJ v Office of the Children’s Guardian [2016] NSWSC 1625 ECJ v Children’s Guardian [2020] NSWCATAD 28
Category:	Principal judgment
Parties:	EFY (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: P Singleton (Respondent) Solicitors: Applicant (Self Represented) Crown Solicitor (Respondent)
File Number(s):	2020/00078317
Publication restriction:	Section 64(1) Civil and Administrative Tribunal Act 2013. Restriction on publication of information that will identify the applicant, any children, or victims and evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons without leave of the Tribunal.