GRT v Children's Guardian

[2025] NSWCATAD 147

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

GRT v Children’s Guardian [2025] NSWCATAD 147

Hearing dates:

5 June 2025

Date of orders:

5 June 2025

Decision date:

19 June 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J Smith, Senior Member
R Royer, General 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 lacking in substance.

Catchwords:

ADMINISTRATIVE REVIEW – working with children check clearance – lapse of interim bar – jurisdiction – - - practical utility – dismissal – lacking in substance

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Child Protection (Working with Children) Act 2012 (NSW)

Children and Young Persons (Care and Protection) Act 1998 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Community Services (Complaints, Reviews and Monitoring Act) 1993 (NSW)

Cases Cited:

Alchin v Rail Corporation NSW [2012] NSWADT 142

AVS Group Australia Pty Ltd and Tony Sleiman v Commission of Police [2012] NSWADTAP 24

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

Davis v Minister for Health [2022] NSWCATAD 342

Davis v NSW Minister for Health [2023] NSWCATAP 211

Fox v Commissioner of Police [2016] NSWCATAD 77

GDY v Children’s Guardian [2024] NSWCATAD 239

Joiner v Commissioner of Police, NSW Police Force [2023] NSWCATAP 254

NG v Chinese Medicineal Board of Australia [2017] NSWCATOD 36

Samuell v Medical Council of New South Wales [2020] NSWCATOD 149

Zeitoune v Commissioner of Police, NSW Police Force [2024] NSWCATOAD 59

Texts Cited:

None cited

Category:

Procedural rulings

Parties:

GRT (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
P E Kelly (Applicant)
C Chiam (Respondent)

Solicitors:
Gilbert & Tobin (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2024/00389458

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 made an administrative review application to the Tribunal seeking a review of a decision made by the Respondent, the Children’s Guardian, on 18 April 2024, to place an interim bar on her working with children check (WWCC) clearance.

2. As the interim bar had lapsed by the time of the final hearing on 5 June 2025, and the Applicant was the holder of a WWCC clearance, the Tribunal, after hearing from the parties about the issues of jurisdiction and utility, decided to dismiss the proceedings on the basis that the proceedings are lacking in substance.

3. After dismissing the proceedings, the Tribunal stated that written reasons would be provided. These are those reasons.

Background

Applicant’s WWCC clearance history

4. In January 2016, the Applicant applied to the Respondent for a WWCC clearance to engage in child-related work as an authorised carer.

5. On 9 February 2016, the Respondent issued the Applicant with a WWCC clearance.

6. On 18 April 2024, the Respondent imposed an interim bar on the Applicant’s WWCC clearance for reasons which is it unnecessary for the Tribunal to further consider.

7. The Applicant, who lives close to the Victorian border, held a Victorian WWCC which was cancelled. The Applicant is also seeking a review of the cancellation of her Victorian WWCC from the Victorian Civil and Administrative Tribunal (VCAT). The Tribunal was advised by the parties that the VCAT proceedings are on hold pending a decision by this Tribunal in these proceedings.

8. On 18 April 2025, the interim bar lapsed and ceased to have effect. The Respondent did not cancel the Applicant’s WWCC clearance in the 12 months that the interim bar was imposed. Since 18 April 2025, the Applicant has been the holder of a WWCC clearance.

Administrative review application and procedural history

9. On 21 October 2024, the Applicant filed an administrative review application with the Tribunal, seeking a review of the Respondent’s decision of 18 April 2024. This was three days after the six-month statutory period of not being able to seek an administrative review of an interim bar decision had expired.

10. The documents required to be filed by the Respondent under s 58 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act), were due on or about 18 November 2024, 28 days after the receiving notice of the application.

11. On 20 November 2024, one day before the first directions hearing, the Tribunal received a written request from the Respondent, by consent, for orders to be made in accordance with a short minute of order. This request was not granted by the Tribunal and the matter remained listed for the first directions hearing on 21 November 2024.

12. On 21 November 2024, the Tribunal made a number of orders/directions including:

1. Extending the time for the Respondent to file documents in accordance with s 58 of the ADR Act, such that they be filed by 28 November 2024.

2. Listing the matter for final hearing on 3 April 2025.

13. Neither Counsel appearing at the final hearing on 5 June 2025 were present at the directions hearing on 28 November 2024. Counsel for the Applicant advised the Tribunal during the hearing on 5 June 2025, after conferring with the Respondent’s legal representatives, that during the directions hearing on 28 November 2024, the Tribunal had expressed concern about the hearing date being close to the date of the interim bar lapsing, and whether the matter would be decided before the interim bar lapsed.

14. On 21 January 2025, the Respondent filed documents pursuant to s 58 of the ADR Act, over seven weeks late.

15. The Respondent prepared a short minute of order, which was subsequently sent to the Tribunal, by consent, proposing a revised timetable and that the hearing date of 3 April 2025 be vacated. This was primarily because the Respondent had not filed the documents pursuant to s 58 of the ADR Act in accordance with the extension the Respondent had already been granted by the Tribunal.

16. The Tribunal refused to make the orders administratively and re-listed the matter for a directions hearing on 20 February 2025 to consider the non-compliance with the Tribunal’s orders. On 20 February 2025, the Tribunal vacated the hearing date of 3 April 2025 and listed the matter for final hearing on 5 June 2025. The filing dates that had been set on 28 November 2024 were respectively extended.

17. During the hearing on 5 June 2025, the Tribunal queried whether any party had raised the issue of the interim bar lapsing on 18 April 2025 with the Tribunal at the directions hearing on 20 February 2025, or at any time before the final hearing. The Tribunal was advised that neither party had raised this as an issue with the Tribunal at the directions hearing on 20 February 2025 or sought to relist the matter thereafter.

Final hearing of 5 June 2025

18. The fact of the interim bar having lapsed and the decision under review having no operative effect, as well as with the Applicant having a current/valid WWCC clearance at present, was raised by the Tribunal with the parties at the commencement of the final hearing.

19. The Tribunal stated that before the substantive hearing could proceed, the Tribunal had to be satisfied that it had jurisdiction and/or there was utility in determining the matter or otherwise the Tribunal would consider exercising its discretion to dismiss the proceedings. The Tribunal expressed concern about this issue not having been raised before the final hearing, the situation that the Applicant was in, and the delay in the matter and the hearing caused by the late filing of material by the Respondent who was to act as a Model Litigant.

20. The Tribunal also noted that, if the final hearing was to proceed, much of the Respondent’s material appeared to be material which may be inadmissible under s 29(1)(d) of the Children and Young Persons (Care and Protection) Act 1998 (NSW). This also had not been raised by the Respondent at any point prior to the final hearing.

21. The Tribunal allowed time for the parties to consider their positions, including the Tribunal’s decision of GDY v Children’s Guardian [2024] NSWCATAD 239 (GDY), which the Tribunal referred the parties to. The Tribunal then heard oral submissions from both parties.

22. Both parties submitted that the Tribunal had jurisdiction to continue to review the Respondent’s decision as the application had been valid at the time of filing.

23. On the issue of utility, the Applicant sought for the hearing to proceed as the impact of the interim bar on the Applicant had been substantial including loss of reputation, loss of employment and ability to provide care for children as an authorised carer, impact on her financial situation, and the delay in the VCAT proceedings. The Applicant submitted that she is seeking a declaration from the Tribunal that she does not pose a risk to the safety of children, which would assist her with the VCAT proceedings and her future ability to work in child-related roles.

24. The Respondent had earlier submitted in one sentence in the Respondent’s written submissions that “The Respondent does not concede that there is utility to the Tribunal hearing the application, or jurisdiction, and reserves the right to make further submissions on this issue”. This point was not elaborated on in the Respondent’s written submissions of 26 pages.

25. The Respondent accepted that the Tribunal had discretionary power to dismiss the proceedings. The Respondent submitted that the substantive proceedings are the Applicant’s case, she decided to bring the proceedings, and so the Applicant is the best party to explain why there is utility in the matter. The Respondent submitted that the interim bar had lapsed which was not the Applicant’s fault, and therefore consistent with Model Litigant obligations, the Respondent was not seeking to dismiss the proceedings and was taking a neutral position on the issue of utility raised by the Tribunal.

26. The Respondent referred the Tribunal to Schedule 3 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) and noted that costs could not be ordered by the Tribunal in proceedings involving the Child Protection (Working with Children) Act 2012 (NSW) (WWC Act).

Issues for determination

27. The Tribunal considered whether it has jurisdiction to review the Respondent’s decision to impose an interim bar on the Applicant’s WWCC clearance when that interim bar has lapsed (jurisdiction issue), and whether there is otherwise any utility in the proceedings continuing (utility issue).

Relevant legislation

Interim bar

28. Section 17(1) of the WWC Act provides that the Children’s Guardian may, at any time after receiving an application for a WWCC clearance or commencing an assessment of an applicant for or holder of a clearance, determine that the applicant or holder is subject to an interim bar, being a bar on the applicant or holder doing any of the following:

1. engaging in child-related work,

2. residing on the same property as an authorised carer,

3. residing on a property where a family day care service is provided.

29. Section 17(4) of the WWC Act provides that an interim bar ceases to have effect as soon as one of the following occurs:

1. on notification in writing by the Children’s Guardian to the applicant or holder that the interim bar is revoked, or

2. in the case of an applicant for a clearance, if the applicant is granted or refused a clearance, or

3. 12 months after the interim bar takes effect.

30. Section 27(3) of the WWC Act provides that a person who is subject to an interim bar imposed by the Children’s Guardian may apply to the Tribunal for an administrative review under the ADR Act of the decision, but only if the interim bar has been in force for more than six months.

Determination of administrative review by Tribunal

31. Section 63(1) of the ADR Act provides that in determining an application for administrative review under the ADR Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law.

32. Section 63(3) of the ADR Act provides that in determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

1. to affirm the administratively reviewable decision, or

2. to vary the administratively reviewable decision, or

3. to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

4. to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

Grounds for summary dismissal

33. Section 55(1) of the 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.

Guiding principle to be applied in the Tribunal’s practice and procedure

34. Section 36(1) of the NCAT Act provides that the guiding principle of the NCAT Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

35. The Tribunal must seek to give effect to the guiding principle when it exercises any power given to it under the NCAT Act or the procedural rules, or interprets any provision of the NCAT Act or the procedural rules (NCAT Act, s 36(2)).

36. Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with the directions and orders of the Tribunal (NCAT Act, s 36(3)):

1. a party to the proceedings in the Tribunal,

2. An Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal.

Consideration

Jurisdiction issue

37. Both parties submitted that the Tribunal had jurisdiction to continue to review the Respondent’s decision.

38. The Respondent submitted that GDY is authority for the proposition that the Tribunal has jurisdiction to review a decision to impose an interim bar where the interim bar has lapsed on the basis of what the Tribunal stated at [22]. In GDY, at the time of the Tribunal’s decision, the interim bar imposed on the applicant’s WWCC clearance had expired as had her WWCC clearance. At [22]-[23] the Tribunal stated:

“[22] Our preliminary view is that at the time of the application to the Tribunal there was jurisdiction to determine the matter. On that basis it appears orthodox that the application continue to finality. Whilst the decision under review might be argued as otiose due to the occurring of certain events, the position is no different to many other administrative review applications before the Tribunal whereby for example an occupational or other licence is revoked and by the time the review comes on for hearing the underlying licence has expired.

[23] The determination of the Tribunal as applied to the facts and circumstances of the initial decision is often advisory and guides the respondent regulator on any fresh application to them for consideration. In this regard we note that GDY subsequently applied for a fresh WWCCC on 28 February 2024 to the Children’s Guardian. Whilst we have no specific power in this regard we observe and recommend that the Children’s Guardian consider the findings in these proceedings when processing and determining that application.”

39. Notwithstanding the lapsed interim bar and WWCC clearance, the Tribunal proceeded to assess whether the applicant posed a risk to the safety of children by considering the factors in s 30(1) of the WWC Act. The Tribunal found that the applicant did not, at the time, pose a risk to the safety of children, and recommended that the Children’s Guardian consider those findings in the application for a WWCC clearance which it was considering at the time. The Tribunal, however, then procedurally dismissed the proceedings as the WWCC clearance and the interim bar had expired.

40. In GDY, the Tribunal stated at [114]:

“It follows that whilst we find that GDY does not pose a risk, and we make the recommendation that we have above. However, for the reasons outlined earlier in these reasons concerning jurisdiction, as the WWCCC and Interim Bar have now expired, the application to the Tribunal will be procedurally dismissed.”

41. In relation to jurisdiction, the Tribunal had stated at [43] that the “application before us is now moot as the interim bar and that clearance have both lapsed”. However, due to the history of the matter and, it appears, the fact that the Children’s Guardian was at the time of the Tribunal’s decision considering the applicant’s application for a WWCC clearance after the WWCC clearance expired, the Tribunal in GDY proceeded to assess whether the applicant posed a risk to the safety of children. The Tribunal in GDY made a finding that the applicant did not currently pose a risk to the safety of children and recommended that the Children’s Guardian consider that finding in the applicant’s application for a WWCC clearance.

42. The Tribunal, however, does not have any power to make recommendations in administrative review applications made under the WWC Act, unlike the Tribunal’s power to make recommendations under s 32(2) of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) in administrative review proceedings brought under community welfare legislation.

43. The Tribunal’s ultimate decision in GDY was to dismiss the proceedings because of jurisdiction as the WWCC clearance and interim bar had expired.

44. In this matter, which is different to the factual situation in GDY, the Applicant has a current WWCC clearance with no bar on it and that clearance will be in place until February 2026 when it will expire, unless the Applicant applies to renew it. The Tribunal does not agree with the Respondent’s submission that GDY is authority for the Tribunal having jurisdiction in this matter. It is clear from the Tribunal’s reasoning in GDY, that the Tribunal was not convinced that it had jurisdiction to review a decision to impose an interim bar which had since lapsed, and it made no orders in respect of the decision to impose the interim bar.

45. Section 27(3) of the WWC Act provides that a person who is subject to an interim bar imposed by the Children’s Guardian may apply to the Tribunal for an administrative review under the ADR Act of the decision, but only if the interim bar has been in force for more than six months.

46. The Tribunal had jurisdiction to review the Respondent’s decision to impose an interim bar on the Applicant’s WWCC clearance at the time that the Applicant filed the administrative review application. The Applicant was a person subject to an interim bar, as of 18 April 2024, the interim bar had effect, and more than six months had passed since the interim bar was in force.

47. However, on or about 18 April 2025, the Applicant was not a person who is subject to an interim bar and there was no interim bar in effect or in force. Section 17(4) of the WWC Act provides that an interim bar ceases to have effect as soon as 12 months haves passed after the interim bar takes effect. The Respondent’s decision was, in effect, a time-limited decision, with a statutory expiry date of 12 months, unless the Respondent made a decision that would replace it before the 12 months lapsed – either to revoke the interim bar or to cancel the Applicant’s WWCC clearance. When the interim bar ceases to have effect, the status quo prior to the interim bar returns, which in this case is the Applicant again becoming a holder of a WWCC clearance.

41. The Applicant is not a person subject of an interim bar, but rather a holder of a WWCC clearance with no bar (interim or final), and the interim bar has ceased to have effect. This decision to impose an interim bar has lapsed in operative effect and has been superseded by the reinstatement of the Applicant’s WWCC clearance. Deciding to allow the interim bar to lapse and otherwise not revoking the interim bar or making a decision prior to the 12-month statutory limit to refuse or cancel the Applicant’s WWCC clearance, is a decision in and of itself (ADR Act, s 6(1)(g)). However, a decision of the Respondent to allow the interim bar to lapse or in other words, refusing to do anything else, is not an administratively reviewable decision under s 27 of the WWC Act. This situation points more to the question of whether there is any practical utility in reviewing a decision that has been superseded by a decision which is not administratively reviewable.

42. The Tribunal could not lose jurisdiction over a validly made application unless legislation makes specific provision for this. There is no such express legislative provision applicable in the circumstances of this case. In the absence of an express legislative provision depriving the Tribunal of jurisdiction, the Tribunal otherwise retains jurisdiction in this matter where the Tribunal’s jurisdiction was invoked after a valid application was filed.

Utility issue

50. Even if the Tribunal retains jurisdiction in this matter despite the interim bar ceasing to have effect at the time of the hearing and another decision has, in effect, superseded the decision under review, the Tribunal is otherwise not satisfied in this case that there is practical utility in proceeding to review the Respondent’s decision to impose an interim bar for the reasons noted below.

51. The Tribunal has recently considered the issue of whether there is practical utility in proceeding to determine an application where a licence or condition has expired. In Zeitoune v Commissioner of Police, NSW Police Force [2024] NSWCATOAD 59 (Zeitoune), the Tribunal decided to dismiss proceedings concerning a review of revocation of an applicant’s security license where the security license had already expired. The Tribunal found that expiry of the applicant’s licence and the lack of any remedy available in the proceedings to affect that licence meant that these proceedings lacked practical utility. The applicant in Zeitoune accepted that the outcome of the review, if it proceeded, could not result in his licence being re-instated, however he argued that any finding that the Tribunal made would have a significant impact in relation to his reputation and his business. In response to this point, at [37], the Tribunal stated:

“Any decision of the Tribunal made at this point in time can only be based upon existing facts. As was pointed out in Special Protection Services (NSW) Pty Limited v Commissioner of Police, NSW Police Force; Constantin v Commissioner of Police, NSW Police Force [2015] NSWCATOD 112 at [58] the Tribunal is entitled to have regard to factual findings made by it in earlier proceedings involving the same party. It does, however, have a discretion as to how much weight it gives to factual findings made in those proceedings. Any findings of the Tribunal made in these proceedings, therefore, in any future decision of the Commissioner (or the Tribunal on review) concerning Mr Zeitoune will need to be assessed in light of the actual outcome of the criminal proceedings and possibly other matters that may arise in the meantime.”

52. In Zeitoune, at [25]- to [34], the Tribunal considered previous authorities in relation to the issue of whether proceedings lack practical utility in circumstances where a licence of condition had expired, which the Tribunal has also considered in this matter:

1. Davis v NSW Minister for Health [2023] NSWCATAP 211 – The Appeal Panel upheld the Tribunal’s dismissal decision in Davis v Minister for Health [2022] NSWCATAD 342. The decision under review was a decision of the Minister for Health to make directions under various Public Health Orders concerning the vaccination status of teachers in the context of the COVID-19 pandemic. By the time the dismissal application was heard by the Tribunal no such Public Health Orders remained in force. The Tribunal rejected arguments made by the applicant that there was utility in the proceedings continuing as determination of the review would have a practical effect regarding her employment which had been terminated; allowing her to “correct the record” and redeem her reputation; and matters characterised as being of public importance but where the outcome of the review would have no direct effect between the parties or on how public health orders may be made in the future. In Davis v Minister for Health [2022], the Tribunal said at [45], applying what was said in Kassam v Hazzard; Henry v Hazzard [2021] NSWCA 299:

“It is no part of the role of this Tribunal to give advisory opinions on issues which have become hypothetical questions or to use resources resolving proceedings the utility of which is either wholly lacking or extremely limited. That would be an improper use of the Tribunal’s limited resources.”

2. Fox v Commissioner of Police [2016] NSWCATAD 77 – Tthe Tribunal found that, as the sole purpose of continuing with the application to review revocation of the applicant’s firearms licence was his desire to clear his name (he no longer being eligible to hold a firearms licence in NSW as he had moved to another state), the matter should be dismissed. The Tribunal noted that the proceedings could not result in the licence being restored to the applicant and there was therefore no longer a “live controversy”. The Tribunal also referred to the resources required to conduct a hearing and noted that matters he wished to raise in the revocation proceedings could be raised in any proceedings concerning a new licence in the state to which he had relocated.

3. NG v Chinese Medicineal Board of Australia [2017] NSWCATOD 36 (NG) - The Tribunal found there was no practical utility in proceeding with an application in circumstances where the respondent had conceded the decision in question had been made in error and had restored the applicant’s full registration. In dismissing the application, the Tribunal referred to the fact that there was no longer a live controversy to be determined, that proceeding to a hearing would be costly and not in keeping with the objects of the NCAT Act and any effect upon the applicant’s reputation was ameliorated by the Tribunal’s reasons for decision.

4. Samuell v Medical Council of New South Wales [2020] NSWCATOD 149 - The Tribunal dismissed the applicant’s application against a decision to impose a condition on his registration in circumstances where the condition had subsequently been removed (although the decision to impose the condition had not been rescinded). The Tribunal in this case also rejected arguments concerning any adverse effect upon the applicant’s reputation by the imposition of the condition or that his future dealings with the Medical Council would be affected if the decision was not set aside. The Tribunal found that while the appeal was instituted for a proper purpose, once the condition the subject of the appeal was removed, the appeal ceased to have a practical purpose and became an appeal which was misconceived and lacking in substance. The Tribunal held that, balancing the cost and time to the Tribunal and the parties if the matter proceeded against the utility of proceeding, the matter should be dismissed.

5. Joiner v Commissioner of Police, NSW Police Force [2023] NSWCATAP 254 (Joiner) - The applicant in this case appealed from a decision of the Tribunal affirming a decision of the Commissioner to revoke her firearms licence. If not for the revocation, the licence would have expired in any event prior to the determination of the appeal. The issue before the Appeal Panel was whether time should be extended for the applicant to lodge her appeal as it had been filed late. In considering whether to extend time the Appeal Panel stated that, while the applicant had a fairly arguable case on appeal, any order that could be made on appeal would be of no utility as her expired licence could not be revived or the licence period extended. The extension of time was refused and the appeal dismissed as the appeal was without practical utility as any order the Appeal Panel could make would have no practical effect and the appeal was moot. The Appeal Panel went on to say at [25] that neither the Tribunal nor the Appeal Panel have the power to make declarations or give advisory opinions, particularly to public authorities. The Appeal Panel stated at [32] that the case did not raise any novel issues or issues of principle that suggested their discretion to hear the matter should be exercised because it may affect other cases.

53. As noted above, the Applicant seeks a declaration from the Tribunal that she does not pose a risk to the safety of children. The Tribunal however, which is a creature of statute and the Acts which confer administrative review jurisdiction on it, does not have the power to make declarations or give advisory opinions to the Respondent or VCAT or any other person or body, as held in Joiner.

54. In AVS Group Australia Pty Ltd and Tony Sleiman v Commission of Police [2012] NSWADTAP 24 at [24]- – [26], the Appeal Panel of the former Administrative Decisions Tribunal found that it was not appropriate for the Tribunal to engage in ‘idle disputes’ or ‘giving advisory opinions’, and that a matter may lose its character as a ‘real controversy’ during proceedings:

“[24] There is no fixed rule of the kind for which the Commissioner contends that would have required the Tribunal to enter an order of dismissal simply because the underlying entitlement, licence or authority had ceased to operate.

[25] In these circumstances, the question of whether the Tribunal should continue to deal with the dispute is to be judged by reference to discretionary considerations relating to the proper management of the proceedings, and having regard to the statutory powers given to the Tribunal including its formal powers of dismissal.

[26] Those discretionary considerations will include the question of whether there is a live dispute or controversy. In that regard, I accept, of course, that it is not appropriate that the Tribunal, or the Appeal Panel, spend time dealing with idle disputes or giving advisory opinions, both for resources reasons as well as ones of intellectual precision. I accept, too, that a dispute may lose its character as a real controversy during the time it is before the Tribunal or the Appeal Panel.”

55. If the Respondent was to decide in the future, if the Applicant applies to renew her WWCC clearance before it expires in February 2026, to refuse a WWCC clearance, then that would be a separate administratively reviewable decision and the Applicant would have review rights in respect of that decision. If the Respondent decides to cancel the Applicant’s WWCC clearance in the future, then that would also be a separate administratively reviewable decision and the Applicant would also have review rights in respect of that decision. The Tribunal also notes that assessments of risk are made at a point in time and based on evidence available at that time. As the Tribunal stated during the hearing, anything could occur between the present time and February 2026, and the Respondent, in any event, is not bound by the Tribunal’s assessment of risk as at the time of the Tribunal’s decision and the evidence available at that time. This would be equally applicable to any findings that VCAT needs to make in those proceedings when they are determined.

56. Further, as the Applicant is the holder of a WWCC clearance at present, which the Respondent has not placed any further bar on, it can be taken that the Respondent accepts that the Applicant is not a risk to the safety of children. Given there is no ‘live controversy’ (as referred to in NG) as to whether the Applicant currently poses a risk to children, there is no practical utility in the Tribunal conducting such a risk assessment. The Respondent has not decided to refuse the Applicant a WWCC clearance in the 12 months it had power to conduct a risk assessment under the WCC Act. The Applicant has returned to the status of holding a WWCC clearance and being able to engage in child-related work in NSW.

57. The Tribunal acknowledges that there have been a number of cases where the Tribunal has heard matters to finality, following the expiry of the licence in question. This was acknowledged by the Tribunal in Zeitoune at [39], where the Tribunal stated that there may be cases where, despite the expiry of the license or entitlement in question, there is still utility in the proceedings being determined.

58. In this matter, the Tribunal is not satisfied that there is practical utility in continuing with the proceedings because:

1. the options open to the Tribunal in determining an application under s 63(1) of the ADR Act, to either affirm, set aside, cancel or remit the decision under review, would have no practical or actual effect, as the decision under review has itself ceased to have effect,

2. the Tribunal has no power to make declarations, as sought by the Applicant, or give advisory opinions to the Respondent, VCAT or any other body or person for future decision making,

3. even if the Tribunal were to embark on a risk assessment under s 30(1) of the WCC Act, it would be limited to the time the assessment was made and the evidence available,

4. there is no live controversy in terms of the Applicant currently posing a risk to children as the Applicant is the current holder of a WWC clearance and is able to engage in child-related work,

5. of the costs, time, resources and delay involved, which is inconsistent with the guiding principle of proceedings in the Tribunal – to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

Dismissal

59. 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 (BDK). At [66], in which the Appeal Panel stated that a reasonably broad connotation should be given to the meaning of the four categories of conduct identified by s 55(1)(b). The Appeal Panel referred to the decision in Alchin v Rail Corporation NSW [2012] NSWADT 142 in which the former Administrative Decisions Tribunal examined the meaning of s 73(5)(g)(ii) of the Administrative Decisions Tribunal Act 1977, the predecessor provision to s 55(1)(b) of the NCAT Act and found that “lacking in substance” encompassed an untenable proposition of fact or law.

60. The Appeal Panel in Davis v Minister for Health [2023] 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

2. complaints that are obviously hopeless or obviously undeserving of relief

3. a claim which presents no more than a remote possibility of merit and which does no more than hint at a just claim

4. proceedings in respect of which it is readily apparent that they are hopeless and bound to fail

5. a claim that is not reasonably arguable

61. The Appeal Panel in Davis v Minister for Health [2023] at [53] agreed 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 and 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”. The Appeal Panel went on to state that 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”. At [54], the Appeal Panel stated:

“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’”.”

62. In this matter, there is an untenable proposition of fact and/or law for the proceedings to continue for the same reasons that there is no practical utility in the proceedings continuing or in the words of the Tribunal in Davis v Minister for Health [2023], of “no practical effect”.

63. It follows that as the Tribunal is not satisfied that there is any practical utility in the proceedings continuing, the Tribunal has determined that it is an appropriate exercise of the Tribunal’s discretion to dismiss the proceedings, which it can at any stage of the proceedings, under s 55(1)(b) of the NCAT Act, because the proceedings are lacking in substance.

Conclusion

64. The Tribunal acknowledges that while the Applicant holds a WWCC clearance and is able to engage in child-related work in NSW at present, the dismissal of these proceedings would be a disappointing outcome that has come at significant cost. However, the Tribunal has found that the Applicant’s administrative review application is lacking in substance, primarily because there is no practical utility in the proceedings continuing.

65. The Tribunal has therefore decided to exercise its discretion and dismiss the proceedings under s 55(1)(b) of the NCAT Act.

Order

66. Pursuant to s 55(1)(b) of the NCAT Act, the Tribunal dismisses the proceedings as the Tribunal considers that the proceedings are 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: 19 June 2025