GXN v Children's Guardian

[2025] NSWCATAD 112

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

GXN v Children’s Guardian [2025] NSWCATAD 112

Hearing dates:

3 April 2025

Date of orders:

20 May 2025

Decision date:

20 May 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

R Bailey, Senior Member

Decision:

(1) Pursuant to Section 50(2) of the Civil and Administrative Tribunal Act 2013, the hearing is dispensed with;

(2) The applicant’s application for an extension of time to lodge his application is refused;

(3) The proceedings are dismissed.

Catchwords:

Applicant seeks enabling order - application for extension of time to lodge application for review of decision to cancel Working With Children Check Clearance - delay of 444 days, no adequate explanation for the majority of the delay

Legislation Cited:

Civil and Administrative Tribunal Act 2013

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

Administrative Decisions Review Act 1997 (NSW)

Cases Cited:

FFY v Children’s Guardian [2002] NSWCATAD 143

CFZ v Department of Education [2015] NSWCATAD 231

William Alan Hull v Commissioner of Police [2022] NSWCATAD 6

CFA v Department of Family and Community Services [2016] NSWCATAD 32

Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22

Texts Cited:

None cited

Category:

Consequential orders

Parties:

GXN (Applicant)
Children’s Guardian (Respondent)

Representation:

On the papers

File Number(s):

2025/00093886

Publication restriction:

An order has been made under Section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 prohibiting the publication or broadcast of the name of any person mentioned in the proceedings or referred to in the documentary and material lodged in these proceedings, with the exception of expert witnesses and officers of government agencies.

REASON FOR DECISION

1. The applicant, known as GXN, has applied for an extension of time to seek a review of the decision of the Children’s Guardian (the respondent), dated 21 November 2023, to cancel his Working With Children Clearance Check (clearance) pursuant to Section 23(1) of the Child Protection (Working With Children) Act 2012 (the WWC Act).

2. The applicant filed his application for administrative review on 7 March 2025, which was 472 days after he was notified of the respondent’s decision, which was 444 out of time.

3. The applicant did not provide a reasonable explanation for the delay. Accordingly, I dismissed his application for an extension of time and dismissed the proceedings.

Background

4. On 17 February 2016, the applicant was granted a clearance. However, on 29 June 2023, the respondent was notified of certain information about the applicant, which led to a risk assessment of the applicant being conducted.

5. On 3 August 2023, the respondent advised the applicant that he was subject to an interim bar, pursuant to Section 17(1) of the WWC Act, pending the risk assessment. He was advised that the respondent proposed to cancel his clearance.

6. On 21 November 2023, the respondent cancelled the applicant’s clearance pursuant to Section 23(1) of the WWC Act.

7. The applicant did not file his application for administrative review for 472 days after being advised of the respondent’s decision, which equates to being 444 days out of time.

8. On 3 April 2025, the Tribunal made orders under Section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (the CAT Act) restricting, with certain exceptions, the publication or broadcast of the names of persons mentioned in these proceedings or in the documentary material.

9. On the same date, the Tribunal directed the applicant to provide to the Tribunal, and all other parties, his miscellaneous application seeking leave to extend time to proceed with the application by no later than 10 April 2025.

10. The respondent was directed to file any evidence and submissions in reply by 17 April 2025.

11. The applicant was directed to file evidence and submissions supporting his application for leave to extend time, by 24 April 2025.

12. The Tribunal determined, on that date, by consent, that the request to extend time to proceed with the application would be determined on the papers, without the need for a hearing, in accordance with Section 50(2) of the CAT Act.

13. On 8 April 2025, the applicant produced to the Tribunal a letter, dated 7 April 2025, a copy of the Court Order Notice, dated 25 July 2024 from the Local Court of NSW at Fairfield, an extract of the NSW Police Facts Sheet (four pages provided), dated 1 August 2023, and advice of Court result, dated 7 April 2025.

14. On 16 April 2025, the applicant filed his request for an extension of time to file his substantive application, in contravention of the directions made on 3 April 2025.

The applicant’s submissions

15. The applicant submitted that, on or about 28 June 2023, he was charged by NSW Police for pulling the hair of his 17-year-old son, who has an intellectual disability.

16. Although the applicant did not refer to this, the Tribunal notes that the charge sheets reveal that he was also charged with contravening a prohibition restriction in an AVO (Domestic) and common assault.

17. He pleaded not guilty to both charges. The applicant submitted that both charges were ultimately withdrawn and dismissed.

18. The applicant submitted that the actions of the respondent, in cancelling his clearance, whilst the criminal trial was pending, was “conduct prejudicial to (his) interests” and contrary to the presumption of innocence.

19. He submitted that the fact that the charges were withdrawn indicates that he did not commit any offence against his son.

20. He alleges that the cancellation of his clearance has had detrimental consequences for him. He is the primary breadwinner for his family, and is unable to work in his chosen career as a Registered Nurse.

21. He wrote: “I submit that the reinstatement of my Working With Children Clearance is consistent with my being innocent from the beginning”.

22. That submission does not provide any explanation for the applicant’s delay in filing his application for administrative review.

23. On 16 April 2025, when the applicant served his application for miscellaneous matters, seeking an extension of time to file his application, he wrote that the reason he seeks leave for the application to be lodged out of time is because he “awaited the final decision in regards to all matters in Fairfield Magistrate’s Court”.

24. The applicant has not submitted any additional material in support of his application for leave to extend time.

The respondent’s case

25. The respondent opposes the granting of leave to commence the application out of time. The respondent submits that the applicant has not satisfied the onus to provide a reasonable explanation for a delay of almost 16 times the period permitted by the enabling legislation.

26. The respondent noted the applicant’s explanation to the effect that he was awaiting the decision of the Magistrate’s Court proceedings on 20 March 2024 and 15 April 2024. However, the respondent asked the Tribunal to consider the fact that the applicant has not provided any explanation for why the substantive application was not filed for 326 days after the conclusion of the second criminal proceedings on 15 April 2024.

27. The respondent submitted that the applicant wrote to the respondent on 22 May 2024 (183 days after the Notice of Decision) advising the respondent that the allegations and charges were withdrawn and dismissed. The applicant requested a clearance on that occasion.

28. The respondent advised the applicant that the respondent’s decision could be reviewed only by way of application to the Tribunal. The respondent argues that the applicant was therefore aware, at that time, that an application would need to be made to the Tribunal to have the decision to cancel his clearance reviewed.

29. Furthermore, the respondent argues that an extension of time would result in prejudice to the guardian, because it would put to the respondent to the expense of defending the application, contrary to Parliament’s intention that applications to the Tribunal should be made in a timely and inexpensive fashion. The respondent submitted: “Such disproportionate expenditure of public monies is not in the public’s interest”.

30. Finally, the respondent argues that the merits of the applicant’s case are weak and asked the Tribunal to consider the fact that criminal charges against the applicant were withdrawn ‘does not equate to innocence’, and the Tribunal could not be satisfied, on that basis, that the applicant poses no risk to children.

31. The respondent submitted that the applicant has failed to demonstrate the merits of his case and that the material presently before the Tribunal highlights a pattern of “seriously concerning conduct” against a background of a series of allegations.

LEGAL FRAMEWORK

32. Subsection 21(1) of the WWC Act provides:

“A person who has been refused a Working With Children Check Clearance by the Children’s Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person”.

33. Section 41 of the CAT Act provides that the Tribunal may “extend the period of time for the doing of anything under the legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation”.

34. The Tribunal has a broad discretion when deciding whether to extend time for the lodging of an application for the administrative review of a reviewable decision. Relevant factors include:

1. the length of delay;

2. the reason for the delay;

3. the applicant’s prospects of success, that is usually whether the applicant has a fairly arguable case;

4. the extent of any prejudice suffered by the respondent;

5. public interests consideration; and

6. whether strict compliance with the rules will work an injustice upon the applicant (see FFY v Children’s Guardian [2022] NSWCATAD 143 and CFZ v Department of Education [2015] NSWCATAD 231).

Length of delay

35. The applicant’s application to the Tribunal was 444 days, well over a year, out of time.

36. The Tribunal has previously considered whether the length of a particular delay is “a factor weighing strongly against a grant of an extension of time” (see William Alan Hull v Commissioner of Police [2022] NSWCATAD 6, where the Tribunal considered that a delay of 10 months weighed strongly against the grant).

37. In CFA v Department of Family and Community Services [2016] NSWCATAD 32, Senior Member Lucy described a delay of more than two months as “substantial without being excessive”.

38. A delay of over a year is exceptionally long. This is particularly the case in circumstances where the applicant has been advised of the need to submit his application to the Tribunal for a review of the decision. This is a factor which weighs heavily against the grant of an extension of time.

Explanation for the delay

39. I was not satisfied that the applicant’s explanation provided an adequate explanation or persuasive reasons for extending the time. Even if I accept his submission that he waited for the result of the criminal proceedings before filing his application, this does not account for the 352 days between the dismissal of the criminal charges and his application. There is no doubt that the applicant was aware that his clearance had been cancelled prior to that time.

40. This is an additional factor weighing against the granting of an extension of time.

The applicant’s prospects of success

41. The respondent argued that the applicant’s application, if it were to be heard, has few merits. Whilst I cannot reach a firm view about the applicant’s chances of success, I am persuaded that there is sufficient basis to assume that the applicant’s prospects of success are not as assured as he might assume.

42. Without having had the benefit of hearing all the evidence, but considering the material contained in the respondent’s bundle, I am inclined to the view that the applicant has no more than a fairly arguable case.

43. Therefore, I am not persuaded that the applicant has such an overwhelming chance of success that it would weigh heavily in favour of his application to grant an extension of time.

The extent of any prejudice suffered by the respondent

44. I note the respondent’s submissions that the granting of an extension of time would cause undue prejudice. I am not persuaded that, in circumstances where the respondent has already prepared a bundle of evidence, that there would be any significant prejudice to the respondent. This is, in my view, a factor which has little, if any, effect on whether the applicant’s request for an extension of tie should be granted.

Public interest considerations

45. As Senior Member Lucy wrote in FFY v Children’s Guardian [2002] NSWCATAD 143: “Time limits are established by legislation for the purpose of promoting the orderly and efficient conduct of proceedings in the Tribunal, providing certainty for the parties to proceedings, and achieving finality in litigation” (citing Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22).

46. It is in the public interest that, especially in matters involving the prevention of risk to children and young people, the guiding principles of the CAT Act, which provide that matters are to be dealt with as cheaply, quickly and fairly as possible, are upheld. In this matter, the unexplained delay is considerable.

47. Even though I have found that there is no substantial prejudice to the respondent and that the applicant has a fairly arguable case, I am not satisfied that an extension of time would be in the public interest, for that reason.

Whether strict compliance with the rules will work an injustice upon the applicant

48. Strict compliance with the rules will not work an injustice upon the applicant, given that he was advised about his right to apply to the Tribunal, by the respondent shortly after 22 May 2024, and has not provided any explanation why he did not do so after that time.

ORDER

49. For these reasons, I make the following orders:

1. Pursuant to Section 50(2) of the Civil and Administrative Tribunal Act 2013, the hearing is dispensed with;

2. The applicant’s application for an extension of time to lodge his application is refused;

3. The proceedings are dismissed.

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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: 20 May 2025