GNX v Children's Guardian

[2025] NSWCATAD 117

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

GNX v Children’s Guardian [2025] NSWCATAD 117

Hearing dates:

28 April 2025, 13 May 2025

Date of orders:

27 May 2025

Decision date:

27 May 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J Smith, Senior Member

Decision:

Pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW), the Tribunal dismisses the proceedings as the Tribunal considers that the proceedings are misconceived and lacking in substance.

Catchwords:

ADMINISTRATIVE REVIEW – reporting obligations for registrable persons under Child Protection Register – whether the Tribunal has the power to exempt reporting obligations – suspension of reporting obligations - summary dismissal – misconceived and lacking in substance

Legislation Cited:

Child Protection (Offenders Registration) Act 2000 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Crimes Act 1900 (NSW)

Cases Cited:

BDK v Department of Education and Communities [2015] NSWCATAP 129

Davis v Minister for Health [2023] NSWCATAP 211

DKP v Children’s Guardian [2018] NSWCATAD 303

DKP v Children’s Guardian [2019] NSWCATAP 185

DND v Commissioner of Police, NSW Police Force [2019] NSWCATAD 200

Texts Cited:

NCAT Procedure Direction 7 – Use of Generative Artificial Intelligence

New South Wales, Parliamentary Debates, Legislative Assembly, Child Protection Legislation (Registrable Persons) Amendment Bill 2009, 25 November 2009

Category:

Procedural rulings

Parties:

GNX (Applicant)
Children’s Guardian (First Respondent)
Commissioner of Police, NSW Police Force (Second Respondent)

Representation:

Applicant (Self Represented)
Crown Solicitor (First and Second Respondents)

File Number(s):

2024/00283861

Publication restriction:

The publication of the name of the Applicant is prohibited pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW).

REASONS fOR DECISION

Decision

1. The Applicant is a “registrable person” under the Child Protection (Offenders Registration) Act 2000 (NSW) (CPOR Act). The Applicant made an administrative review application to the Tribunal seeking a full exemption from, or reduction of, his reporting obligations for two separate periods of time that he was overseas totalling 2,024 days.

2. The Respondent made an application for summary dismissal of the proceedings on the basis that the proceedings are of no practical utility, misconceived and lacking in substance.

3. The Tribunal has dismissed the proceedings primarily because the Tribunal has no power to make the order sought by the Applicant and therefore the proceedings are misconceived and lacking in substance.

Evidence and background

Registrable offence

4. On 31 July 2015, after pleading guilty, the Applicant was convicted of one count of assault with act of indecency (s 61L of the Crimes Act 1900 (NSW)). The offence involved an act of indecency towards a 17-year-old female victim at a train station. The Applicant was 28 years of age at the time of the offence. The Police Facts Sheet noted the following particulars of the offence:

1. The Applicant approached the victim at the train station and initiated a conversation.

2. The Applicant moved closer to the victim and put his arms around her, which caused the victim to feel scared.

3. The Applicant would not leave the victim alone was persistent with his questions and wanting to talk to her.

4. The Applicant touched the victim’s jaw with one hand, turned her head and kissed her on the mouth, while grabbing her breast on the outside of her clothing and squeezing it.

5. The Applicant asked the victim how old she was, to which the victim stated “Does it matter?”

6. The Applicant again grabbed the victim’s jaw, turned her head and kissed her on the lips.

7. The Applicant ran his fingers through the victim’s hair.

8. The victim stood up and started walking away from the train station and back to her School/College boarding house. The Applicant walked along side of her, placing his hand on her hip.

9. As the victim was walking, the Applicant put his hand down the back of her jeans, under her underpants.

10. The Applicant followed the victim to the boarding house and got trapped in an external corridor. He later escaped by climbing a gate.

11. The victim, who was crying hysterically, asked the Boarding Mistress to ring Police. Police arrived and later located and arrested the Applicant who gave an almost identical version of events but suggested that the victim consented to his advances but must have changed her mind once he placed his hands down the back of her pants.

5. In being convicted of this offence, the Applicant met the definition of a “registrable person” under s 3A of the CPOR Act. The Applicant was placed on the Child Protection Register for a reporting period until 31 July 2023.

Reporting history as registrable person

6. On 5 August 2015, the Applicant was formally notified by the Second Respondent of his reporting obligations by way of service of a Notice Issued to Registrable Person. This document outlined the reporting obligations under the CPOR Act, including annual reporting obligations, changes in relevant personal information and timeframes for reporting any changes to relevant personal information.

7. On 5 August 2015, the Applicant advised the Second Respondent that he would be travelling to his country of origin to visit his family and did not expect to return until February or March 2016.

8. The Applicant’s country of origin is a jurisdiction which does not have similar reporting obligation law equivalent to the CPOR Act.

9. The Applicant was overseas between 8 August 2015 and 30 April 2016, a total of 267 days, and as a result, his reporting obligations were suspended for this length of time in accordance with s 15(1)(b) of the CPOR Act.

10. When the Applicant returned to NSW on 30 April 2016, his reporting obligations were extended for the length of time the obligations were suspended in accordance with s 15(3) of the CPOR Act.

11. On 5 May 2016, the Applicant attended a Police Station and reported that he was residing at a certain address in NSW and was looking for a job. On 30 August 2016, the Applicant attended a Police Station in compliance with his annual reporting obligations and reported that he had commenced staying overnight at a second residence from Monday to Thursday each week which coincided with his days of employment. On 17 January 2017, the Applicant attended a Police Station as part of his regular reporting obligations and did not report any change to his personal details. On 28 February 2017, Police attended the Applicant’s primary residence and were advised by a person at the address that the Applicant no longer lived at the residence and had not done so for many months as he did not pay rent. On 1 March 2017, the Applicant was interviewed by Police and admitted that he had not primarily lived at this address for the past two months.

12. On 2 March 2017, the Applicant was charged with an offence of providing false/misleading information (s 18 of the CPOR Act) and failing to comply with reporting obligations (s 17(1) of the CPOR Act) between 1 January 2017 and 1 March 2017. On 25 May 2017, the Applicant was convicted of the first offence and directed to enter a 12-month bond, pursuant to s 9(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), as the penalty. The second charge of failing to comply with reporting obligations was withdrawn.

13. On 5 November 2018, the Applicant attended a Police Station and advised of his travel plans to leave Australia and return to his country of origin to get married. The Applicant stated that he would be leaving on 12 November 2018 and returning on 27 December 2018.

14. On 7 November 2018, the Applicant went overseas to his country of origin, however did not return to NSW as he had advised. On 22 December 2018, the Applicant advised the Second Respondent in writing that due to some “circumstances and commitments” he was not able to return to Australia as he had earlier advised. The Applicant stated that he would be extending his stay for another couple of months and had not booked a return flight yet. The Applicant stated that he would update the Second Respondent with his return flight plans.

15. On 3 January 2019, Police made attempts to locate the Applicant at his primary address, however, no person was home at the location. Police conducted checks through the Australian Border Force which revealed that the Applicant had not returned to Australia.

16. On 18 March 2019, the Second Respondent emailed the Applicant noting that he was overdue on his return to Australia and asked that the Applicant make contact as soon as possible. The Applicant responded to this email on the same date and said that “due to the change in my return plans” he would not be back in Australia for a while and had not fixed the date for his return. The Applicant said that he would contact the Second Respondent once the return date was confirmed. The Applicant later advised the Second Respondent that the reason he had not returned was because he was assisting his family with a small business project which involved a renovation of the family home.

17. On 4 June 2019, the Second Respondent emailed the Applicant noting that his absence was overdue on the Child Protection Register and asked that he advise as soon as possible. On the same date, the Applicant responded and said that the family project he was managing may take another year and would be completed by 2020.

18. A Court Attendance Notice was issued by a Local Court in NSW to the Applicant for the offence of failing to comply with reporting obligations, requiring that he appear in Court on 4 July 2019. Due to the Applicant’s failure to appear at Court on 4 July 2019, a warrant for the Applicant’s arrest was issued by the Court on this date.

19. The Second Respondent subsequently advised the Applicant via email that there was an outstanding warrant in NSW that would need to be dealt with as soon as he returned to Australia.

20. On 25 May 2023, the Second Respondent emailed the Applicant, asking if he was still overseas. On the same date, the Applicant responded to the Second Respondent confirming he remained overseas, intended to return to Australia to “sort out my CPR” and would advise the Second Respondent once his tickets were ready.

21. On 18 May 2023, the Applicant advised the Second Respondent that he was still overseas, and his wife had given birth to their baby.

22. The Applicant returned to NSW on 29 August 2023, having been outside NSW for a total of 1,757 days. As a result, the Applicant’s reporting obligations were extended for the length of time the reporting obligations were suspended.

23. The warrant that was issued on 4 July 2019, was executed on 30 August 2023 after the Applicant returned to NSW. The Applicant was refused bail.

24. On 30 August 2023, the Applicant appeared before a Local Court in NSW and was found guilty, without proceeding to a conviction, of the offence of failing to comply with reporting obligations (s 17(1), CPOR Act). The Applicant was directed to enter a Conditional Release Order for 24 months, commencing on 30 August 2023.

25. According to the Applicant, his reporting obligations are currently extended until 1 November 2027.

26. On 3 September 2024, after the Tribunal proceedings commenced, the Applicant left NSW and returned to his country of origin and has not returned to NSW. The Applicant has indicated that he has no intention of returning to Australia. The length of time that the Applicant’s reporting obligations have been suspended and extended continues to accrue as the Applicant has not yet returned to NSW.

Administrative review application

27. On 2 August 2024, the Applicant filed an administrative review application, which sought the following:

1. To remove the Applicant from the Child Protection Register, or alternatively

2. To have the duration of the Child Protection Register reduced by the number of days the Applicant has remained in his country of origin by urgent family needs beyond his control including COVID which inhibited his return to Australia, or alternatively

3. Varied to any extent that is to the Applicant’s benefit, or

4. Other orders the Tribunal seeks fit to make.

28. In the Applicant’s submissions in response to the Respondents’ summary dismissal application, the Applicant stated that he was seeking the following relief:

1. That the Tribunal consider varying or setting aside any previous order maintaining the Applicant’s registration (on the Child Protection Register).

2. That the Tribunal assess whether the nature of the offence justifies ongoing inclusion considering that it did not involve intentional harm to a child.

3. Guidance on how to conclude any remaining reporting obligations.

4. Confirmation of whether the Applicant continues to meet the definition of “registrable person” under s 31A of the CPOR Act.

5. That the Applicant’s name be removed from the Child Protection Register under s 3B of the CPOR Act, or by use of any discretionary power available to the Tribunal.

29. In his submissions, the Applicant also requested that the Second Respondent review his case and consider whether the retention of an Interpol Notice (Green Notice) remains justified.

Hearing of application for summary dismissal

30. The Respondent’s application for summary dismissal was listed for hearing on 28 April 2025. At the commencement of the hearing, the Tribunal asked all parties if they had used Generative AI in the preparation of any submissions or evidence noting the requirements of NCAT Procedure Direction 7 – Use of Generative Artificial Intelligence. The Respondents stated that Generative AI had not been used by them in the preparation of the documents they had filed. The Applicant stated that he had used ChatGPT to prepare his documents.

31. After hearing verbal submissions from the Respondents, the Tribunal asked the Applicant what the source of the Tribunal’s power was for any of what he was seeking from the Tribunal as this was not clear in his application. The Applicant was not able to answer this question and asked for an adjournment of the hearing to allow him time to further consider this question. The adjournment request was consented to by the Respondents and granted by the Tribunal. The Tribunal cautioned the Applicant on relying on ChatGPT for legal advice and suggested that the Applicant may wish to seek legal advice from a lawyer about his application.

32. The Tribunal made it clear to the Applicant that the Tribunal could not give the Applicant advice about his reporting obligations under the CPOR Act or compel the Second Respondent to review his Interpol Notice status.

33. The hearing resumed on 13 May 2025. The Applicant confirmed that in his administrative review application he was seeking an exemption (or reduction or waiver) of his reporting obligations for the length of time that they were suspended for the first two periods of time that he was away from NSW. That is, between 8 August 2015 and 30 April 2016, and between 7 November 2018 and 29 August 2023, a total of 2,024 days. The Applicant withdrew the rest of his application including the seeking of an order that he be removed from the Child Protection Register. The Applicant conceded that in the adjournment period he had not been able to identify a source of power for the Tribunal to make such an order. The Tribunal dismissed that part of the application on the basis it was withdrawn.

34. The Respondents maintained their application for summary dismissal of the proceeding after the scope of the Applicant’s administrative review application was confirmed. The hearing proceeded with both parties making further verbal submissions. Notwithstanding that the Applicant had used ChatGPT for the preparation of his documents (which was a mixture of submissions and evidence), the Tribunal accepted, without any objections made by the Respondents, the tender of documents relied on by the Applicant (Exhibits A1, A2, A3, A4, A5, and A6). The Tribunal was also mindful that the determination of the application for summary dismissal primarily came down to statutory construction and there were not any significant factual disputes or assessment of the weight of evidence similar to what would have occurred at a final hearing of the substantive application. The Tribunal also accepted the tender of documents relied on by the Respondents (R1, R2, R3, R4 and R5).

Issues for determination

35. In considering the Respondents’ application for summary dismissal, the Tribunal needs to first determine whether the Tribunal has the power to exempt or reduce or waive (rather than suspend) the Applicant’s reporting obligations under the CPOR Act.

36. The Tribunal will consider whether the administrative review application should otherwise be summarily dismissed on the grounds relied on by the Respondent, which essentially are that the application is misconceived and lacking in substance.

37. The Applicant lodged his administrative review application while present in NSW. The Applicant is currently overseas. As this application does not call for the exercise of judicial power, no jurisdictional issue arises under s 74(iv) of the Constitution. If this application was a matter between a State and a resident of another State, requiring the exercise of judicial power, then this Tribunal would have no jurisdiction to decide it (DKP v Children’s Guardian [2019] NSWCATAP 185, [23], [33]).

Consideration

Whether the Tribunal has the power to exempt or reduce or waive (rather than suspend) the Applicant’s reporting obligations under the CPOR Act?

38. It is important to note the objects of the CPOR Act, set out in s 2A, which are:

1. to protect children from serious harm (including physical and psychological harm caused by physical or sexual assault), and

2. to ensure the early detection of offences by recidivist child sex offenders, and

3. to monitor persons who are registrable persons, and

4. to ensure that registrable persons comply with this Act.

39. Section 11A(2) of the CPOR Act provides that at least seven days before leaving NSW, a registrable person must report the intended travel to the Commissioner of Police and must provide details of:

1. each State, Territory or country to which the person intends to go while out of NSW, and

2. the approximate dates during which the person intend to be in each of those States, Territories or countries, and

3. each address or location within each State, Territory or country at which the person intends to reside (to the extent that they are known) and the approximate dates during which the person intends to reside at those addresses or locations, and

4. if the person intends to return to NSW, the approximate date on which the person intends to return, and

5. if the person does not intend to return to New South Wales, a statement of that intention.

40. If circumstances arise making it impracticable for a registrable person to make the report seven days before the person leaves, it is sufficient compliance if the registrable person reports the required information to the Commissioner of Police at least 24 hours before the intended travel (CPOR Act, s 11A(3)).

41. If the registrable person who is out of NSW decides to change any details given to the Commissioner of Police under s 11A(2) of the CPOR Act, the registrable person must report the changed details to the Commissioner of Police as soon as practicable after making the decision, by facsimile, email or to any other address or manner permitted by the regulations (CPOR Act, s 11B).

42. If the registrable person left NSW, the person must report the person’s return to NSW to the Commissioner of Police within seven days after entering and remaining in NSW for 14 or more consecutive days, not counting any days spend in government custody (CPOR Act, s 11C(2)).

43. Section 15(1) of the CPOR Act provides that a registrable person’s reporting obligations are suspended for any period during which:

1. the person is in government custody, or

2. the person is outside NSW unless the person is a person to whom Division 5 applies or the obligation is under s 11B, or

3. the person is the subject of an order in force under s 16 (or an equivalent order in a foreign jurisdiction), or

4. the person is the subject of an interim supervision order or extended supervision order under the Crimes (High Risk Offenders) Act 2006 or the Terrorism (High Risk Offenders) Act 2017.

44. The relevant sub-section in s 15(1) for this matter is sub-section (b), as the Applicant was outside NSW. The reference to Division 5 is not relevant as Division 5 relates to modified reporting procedures for protected witnesses, which does not apply to the Applicant. The reference to s 11B is also not relevant as that reference is included to clarify that a registrable person who is out of NSW and decides to extend a stay elsewhere in Australia beyond 13 days or change any details given to the Commissioner of Police about absences from NSW, still has an obligation under s 11B to report any change of travel plans while out of NSW.

45. Pursuant to s 15(3) of the CPOR Act, if s 15(1)(b) applies, the period for which a registrable person’s reporting obligations continue is extended by the length of time for which those obligations are suspended from time to time under s 15(1)(b), if, during the time in which the obligations are suspended, the registrable person:

1. is travelling outside Australia for one month or more or is resident outside Australia, and

2. is not required to report under any corresponding Act.

46. Section 16(3A) of the CPOR Act provides that on the application for a registrable person whose reporting period has been extended under s 15(3), the Tribunal may make an order suspending the registrable person’s reporting obligations for the length of time by which the registrable person’s reporting period was extended under s 15(3).

47. The Tribunal is not to make an order suspending the registrable person’s reporting obligations unless it considers that the person the subject of the proposed order does not pose a risk to the safety of children (CPOR Act, s 16(4)). The Tribunal is also to take into account the following matters (CPOR Act, s 16(5)):

1. the seriousness of the registrable person’s registrable offences and corresponding registrable offences,

2. the period of time since those offences were committed,

3. the age of the registrable person, the age of the victims of those offences and the difference in age between the registrable person and the victims of those offences, as at the time those offences were committed,

4. the registrable person’s present age,

5. the registrable person’s total criminal record,

6. any other matter the Tribunal considers appropriate.

48. The title of s 16 of the CPOR Act reads: “NCAT may exempt persons from compliance with reporting obligations”, however there is no provision within s 16 that gives the Tribunal power to fully exempt persons from compliance with reporting obligations. The only power that the Tribunal has in s 16 is to suspend reporting obligations for a length of time. A registrable person may be exempted from having to comply with the reporting obligations for the length of time that they are suspended, but compliance will resume at the expiry of that length of time.

49. In DND v Commissioner of Police, NSW Police Force [2019] NSWCATAD 200, the Tribunal similarly dealt with an application for summary dismissal of proceedings in which the applicant, a registrable person, was seeking exemption from reporting obligations under the CPOR Act. The Tribunal dismissed the proceedings on the basis that the Applicant’s application was frivolous, vexatious, or otherwise misconceived or lacking in substance in accordance with s 55(1)(b) of the NCAT Act. At [25]-[26] the Tribunal stated:

The Tribunal does not have power to exempt a registrable person from his or her reporting obligations altogether. Nor does the Tribunal have any power to remove a person’s name from the Child Protection Register in s 19 of the Child Protection (Offenders Registration) Act. It only has the powers conferred upon it by statute.

The applicant confirmed, during the hearing, that he considered that the Tribunal had power to exempt him entirely from his reporting obligations, due to the heading of s 16, “NCAT may exempt persons from compliance with reporting obligations.” The Appeal Panel rejected that argument in DKP v Children’s Guardian [2019] NSWCATAP 185 at [43], stating that “[a] heading to a section of an Act is generally not taken to be part of the Act (see s 35(2) Interpretation Act 1987 (NSW))” and that the argument was “not supported by the text of s 16 of the Child Protection (Offenders Registration) Act 2000.”

50. The Appeal Panel in DKP at [44] determined that the Tribunal did not have power to give the registrable person in that case, an exemption from his reporting obligations as a registrable person beyond the suspension of those obligations for the period of time by which his reporting period had been extended under s 15(3) of the CPOR Act.

51. The Applicant submitted that in DKP v Children’s Guardian [2018] NSWCATAD 303, the decision that the Appeal Panel considered on appeal in DKP, it was clarified that “the Tribunal has discretion to reduce the reporting period”. This was not the outcome of the Tribunal’s decision at first instance. The Tribunal decided to suspend the applicant’s reporting obligations for 137 days. The Tribunal stated that the suspending of reporting obligations “has the effect of staying the reporting obligations in that, for want of a more legal phrase, time stops and when the reportee returns to the jurisdiction time begins to count once again” (DKP v Children’s Guardian [2018] NSWCATAD 303, [46]). The Tribunal notes at this point, the risk in relying on ChatGPT and Generative AI for legal advice. The Applicant’s description of the decision in this case in his submissions, for which he used ChatGPT to prepare, is clearly wrong.

52. Both the Applicant and Respondents referred the Tribunal to the Second Reading Speech for the Child Protection Legislation (Registrable Persons) Amendment Bill 2009. The relevant parts of the Second Reading Speech are as follows:

Another key change to the Child Protection Register contained in this bill is the ability for the clock to be stopped on a registrable person’s reporting period when that person is overseas for one month or more, through the proposed new section 15(3) of the Act.

Police have observed that some registrable persons appear to be going overseas for long periods of time to avoid their reporting obligations. It is also believed that some persons who are required to register in New South Wales and have not done so are, in fact, overseas and will return to New South Wales only when their reporting period has expired. An example is that of a citizen of the United Kingdom who returned to the United Kingdom for six or seven years of his eight-year reporting period and returned to Australia as soon as his reporting obligations ceased.

Another example is a man who travelled to Indonesia for six months, a country without a register, returned to Australia for less than 14 days - so that he was not required to report - to renew his visa, and then returned to Indonesia. The bill inserts section 15(3) into the Act so that prolonged periods of a month or more of overseas travel to countries without a corresponding register will result in a corresponding increase to the reporting period, as with terms of custody. The bill also amends section 16 of the Act so that a registrable person whose reporting period is extended under section 15(3) can apply to the Administrative Decisions Tribunal to have their reporting obligations suspended for the extended period.

53. The Second Reading Speech only refers to the Tribunal being able to suspend reporting obligations for the period of time that they were extended under s 15(3) of the CPOR Act. It was the clear intention of Parliament that s 15 of the CPOR Act prevents persons from avoiding their reporting obligations by going overseas.

54. The Tribunal is of the view from a plain reading of s 15 and s 16 of the CPOR Act, supported by the Parliamentary intention of these sections, and in line with previous authorities, that the Tribunal has no power to fully exempt a registrable person from their reporting obligations or reduce or waive the length of time of reporting obligations (whether they have been extended or not).

55. The answer then to the question of whether the Tribunal has the power to exempt or reduce or waive (rather than suspend) the Applicant’s reporting obligations under the CPOR Act - is no.

Whether the administrative review application should otherwise be summarily dismissed

56. Even if the Applicant was seeking a suspension of reporting obligations for the period he has specified, rather than an exemption/reduction/waiver of reporting obligations, the Tribunal is not satisfied that it could suspend the Applicant’s reporting obligations that have been extended for the reasons set out below.

57. The Tribunal is not to make an order suspending the registrable person’s reporting obligations unless it considers that the person the subject of the proposed order does not pose a risk to the safety of children (CPOR Act, s 16(4)). The Applicant is overseas and has been for a significant length of time since becoming a registrable person, which limits the Tribunal (and the Respondents) being able to properly assess whether the Applicant poses a risk to children.

58. While the Applicant has made claims as to his good character and circumstances in his country of origin, the Tribunal and Respondents are not able to properly test or assess these claims. The objects for the joinder of the Children’s Guardian to these proceedings (CPOR Act, s 16(6)) is the protection of children and to enable submissions to be made in the interests of the protection of children in the state of NSW (DKP, [28], [29]). The Children’s Guardian is not able to assess whether the Applicant poses a risk to children in NSW when he is in another country where the Children’s Guardian has no jurisdiction to fulfil the Children’s Guardian’s statutory role.

59. The Applicant is proposing that the Tribunal treat the periods of time that he has spent overseas as separate periods of time which can individually be extended and then suspended. The Tribunal accepts the Respondents’ submission that such a construction of the CPOR Act would frustrate the Parliamentary intention to prevent registrable persons from evading reporting obligations. This would mean that a registrable person could spend a period of time outside of NSW, come back to NSW for just one day, have all of the time spent outside of NSW computed and extended and then leave after lodging an application with the Tribunal seeking for that period to be suspended. This is not a construction of the CPOR Act that is consistent with the objects of the Act to ensure registrable persons comply with the Act, including their reporting obligations.

60. If the Tribunal is not minded to treat the periods of time that the Applicant has spent overseas separately, the Applicant’s reporting obligations are currently suspended as he is outside of NSW and continue to be suspended indefinitely. The Tribunal would not be able to suspend reporting obligations that are already suspended, and for which there is no known end to the length of time that the Applicant will remain outside of NSW.

61. Although the inability to properly consider whether the Applicant poses a risk to the safety of children while the Applicant is overseas is enough of a hurdle to prevent the Tribunal from making an order under s 16(3A) of the CPOR Act, on the evidence before the Tribunal, consideration of the matters in s 16(5) would also not support an order being made, for the reasons that follow.

62. The Applicant submits that the offence was not committed against a child, even though the victim was 17 years of age. This submission demonstrates a lack of insight on the part of the Applicant into the offence he committed, which was against a child. A ‘child’ is defined in s 3 of the CPOR Act to mean a person under the age of 18 years. The Applicant was also over 10 years older than the victim at the time of the offence.

63. The Applicant submits that he asked the victim how old she was at the time of the offence and that her response was “does it matter?” should be considered in his favour. The Applicant submits that he took steps to “verify the individual’s age”, which he submits demonstrates a lack of intent to engage in unlawful conduct. The Tribunal does not accept this submission. The question to the victim about her age, in the timeline of the offending conduct as described in the Police Facts Sheet and set out above, was not asked by the Applicant before the offending conduct began. In any event, the Tribunal would not consider that this verbal interchange between the Applicant and the victim, in the context of the all the particulars of the offence would weigh in favour of the Applicant or reduce the seriousness of the offence.

64. The Applicant also has a record of non-compliance with his reporting obligations as set out above, including two convictions for offences under the CPOR Act, which weighs against making an order to suspend the Applicant’s reporting obligations.

Grounds for summary dismissal

65. Section 55(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) provides that the Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances:

1. if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate,

2. if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,

3. if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings,

4. if the Tribunal considers that there has been a want of prosecution of the proceedings.

66. The Appeal Panel considered the Tribunal’s power of dismissal in s 55(1)(b) of the NCAT Act in BDK v Department of Education and Communities [2015] NSWCATAP 129 at [63]-[66]:

In Alchin v Rail Corporation NSW [2012] NSWADT 142 Judicial Member Wright SC (as he then was) examined the meaning of the predecessor provision to s 55(1)(b) - s 73(5)(g)(ii) of the Administrative Decisions Tribunal Act 1977. As to the meaning of ‘misconceived’ and ‘lacking in substance’, he said:

25 The expressions used in s 92(1)(a)(i) of the ADA, namely “misconceived” and “lacking in substance” are found not only in the ADA but also in s 73(5)(g) of the ADT Act and similar legislation in other states. With respect to a similar provision found in the Equal Opportunity Act 1984 (Vic), Ormiston JA in State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at [14] said:

“misconceived” and “lacking in substance” have not, so far as I am aware, been used in this context before though each expression is commonly used by lawyers, the one connoting a misunderstanding of legal principle and the other connoting an untenable proposition of law or fact. If one may discern, in these provisions, an attempt to express the powers of tribunals in non-technical language, then “misconceived” would represent a claim which did “not disclose a cause of action” ..., whereas “lacking in substance” might be seen to represent a claim where the defendant could obtain summary judgment ...

26 This approach of construing “misconceived” as including a misunderstanding of legal principle and “lacking in substance” as encompassing an untenable proposition of fact or law has been applied by the Tribunal in many decisions including, for example, Keene v Director-General, Department of Justice and Attorney-General [2011] NSWADT 59 at [14], McDonald v Central Coast Community Legal Centre [2008] NSWADT 96 at [22] and Stanborough v Woolworths Ltd [2005] NSWADT 203 at [50].

In the present case, the Tribunal referred to the frequently-cited explanation of this term by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491:

1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.

2. They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.

3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.

It will be seen that Roden J’s first category covers conduct that falls within the meaning of ‘frivolous’, while his third category embraces the kind of cases to which the expressions ‘misconceived’ and ‘lacking in substance’ are directed (or, in the case of the UCPR categories, cases not disclosing a reasonable cause of action).

In our view a reasonably broad connotation should be given to the meaning of the four categories of conduct identified by s 55(1)(b). The intent of the provision, as we see it, is to seek to give the Tribunal a broad power to deal with abuses of its processes, and for them to be interpreted and applied in a power which captures any kind of abuse of process, that can reasonably be seen to fall within their compass. While ‘misconceived’ and ‘lacking in substance’ may be seen as relatively specific terms, we think a flexible, purposive interpretation can be adopted in determining whether proceedings are ‘frivolous’ or ‘vexatious’, conscious always of the gravity for an applicant or plaintiff of summary dismissal of proceedings.

67. The Appeal Panel in Davis v Minister for Health [2023] NSWCATAP 211 at [31] referred to other decisions in which the phrase “lacking in substance” used in the context of statutory provisions which confer power to dismiss proceedings summarily, has been given several meanings:

(1)    “an untenable proposition of law or fact”: Rabel at 109 (Ormiston JA) in relation to s 44C of the Equal Opportunity Act 1984 (Vic);

(2)   “complaints that are obviously hopeless or obviously undeserving of relief”: Rabel at 104 (Tadgell JA);

(3)   “a claim which presents no more than a remote possibility of merit and which does no more than hint at a just claim”: GVR v Department of Health, Housing and Community Services (Human Rights and Equal Opportunity Commission, Wilson P, 23 August 1993, unrep) in relation to the Racial Discrimination Act 1975 (Cth), cited with approval by Von Doussa J in Nagasinghe v Worthington (1994) 53 FCR 175 at 178; [1994] FCA 766;

(4)   “proceedings in respect of which it is readily apparent that they are hopeless and bound to fail”: Chopra v Department of Education and Training (2019) 60 VR 505;[2019] VSCA 298 at [134] (Tate, Whelan and Kyrou JJA) in relation to the Civil and Administrative Tribunal Act 1998 (Vic), s 75(1)(a);

(5)   a claim that is “not reasonably arguable”: Zouk at [45] (Ipp JA, Beazley and Bryson JJA agreeing) in relation to the Strata Schemes Management Act 1996 (NSW), s 185(4).

68. The Appeal Panel in Davis at [53]-[54] stated:

We agree with the view expressed by the Appeal Panel in BDK that a “reasonably broad connotation” should be given to the meaning of each of the four categories of proceedings listed in s 55(1)(b) of the NCAT Act. Ms Davis is correct that the phrase “lacking in substance” can mean proceedings where it is found that the initiating claim or application is based on an “untenable proposition of fact or law” or “is not reasonably arguable”. However, there is nothing in the text, context or purpose of s 55(1)(b) of the NCAT Act to suggest that these are the only findings which might justify the conclusion that the proceedings are lacking in substance. A range of findings could potentially justify a conclusion that proceedings are “lacking in substance”, including that the proceedings “would be of no practical effect”, or that the initiating application was based on an “untenable proposition of fact or law” or was “not reasonably arguable”. Equally, a range of findings could potentially justify a conclusion that proceedings are “vexatious”, “frivolous” or “misconceived” (see, e.g., the analysis of Roden J about the term vexatious in Attorney-General v Wentworth at 491).

Section 55(1)(b) of the NCAT Act empowers the Tribunal to govern its own processes, to ensure that its processes are not abused and to ensure that its resources are applied to resolving real, not confected, amorphous or nebulous disputes. The Tribunal arguably could have dismissed the Application on the basis that, while not initially, it had become vexatious (although not intended to be) or misconceived because any “success” achieved by Ms Davis could have had no practical effect due to the passage of time and the expiration of the Public Health orders. Proceedings, such as this one, which beg the question “So what?”, in essence lack legal substance and therefore have “no practical effect”.

69. In the circumstances, the Tribunal is satisfied that it is an appropriate exercise of discretion to dismiss the proceedings under s 55(1)(b) on the grounds that the Applicant’s administrative review application is misconceived and lacking substance. The Applicant’s application represents a misunderstanding of legal principle and is based on an untenable proposition of fact or law. The Applicant is seeking an order (exemption of reporting obligations) that the Tribunal has no power to make, and even if the Tribunal were being asked to suspend the Applicant’s reporting obligations, the Tribunal would not be able to do so for the reasons explained above.

Conclusion

70. The Tribunal has found that it does not have the power to exempt or reduce or waive (rather than suspend) the Applicant’s reporting obligations under the CPOR Act.

71. The Tribunal has considered the alternative situation of the Applicant seeking a suspension of reporting obligations for the period he has specified, rather than an exemption/reduction/waiver of reporting obligations. In doing so, the Tribunal is not satisfied that it could suspend the Applicant’s reporting obligations because the Tribunal could not properly assess whether the Applicant poses a risk to children and there are factors in s 16(5) of the CPOR Act that weigh against making such an order.

72. The Tribunal has found that the Applicant’s administrative review application is misconceived and lacking in substance, due to the Tribunal not having the power to make an order to exempt or reduce or waive the Applicant’s reporting obligations, or alternatively not being able to make an order suspending the Applicant’s reporting obligations. The Tribunal has therefore dismissed the proceedings under s 55(1)(b) of the NCAT Act.

Order

1. Pursuant to s 55(1)(b) of the NCAT Act, the Tribunal dismisses the proceedings as the Tribunal considers that the proceedings are misconceived and lacking in substance.

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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: 27 May 2025