Olunwabusor v Children's Guardian

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Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Olunwabusor v Children's Guardian [2023] NSWCATAD 199
Hearing dates: 5 April 2023
Date of orders: 31 July 2023
Decision date: 31 July 2023
Jurisdiction:Administrative and Equal Opportunity Division
Before: M Anderson, Senior Member
M Maher, General Member
Decision:

The decision of the respondent dated 2 August 2022 to issue the applicant with an exclusion and refuse to grant the applicant a clearance is affirmed.

Catchwords:

ADMINISTRATIVE LAW – NDIS Worker Checks - child protection –risk of harm - whether risk real and appreciable– risk of harm likely or significant– weight of evidence of risk – current risk – non publication order – whether open justice served.

Legislation Cited:

Administrative Decisions Review Act 1997(NSW)

Child Protection (Prohibited Employment) Act 1998 (NSW) (repealed)

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

Civil and Administrative Tribunal Rules 2014 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Criminal Code (Cth)

Drug Misuse and Trafficking Act 1985 (NSW)

Evidence Act 1995 (NSW)

National Disability Insurance Scheme Act 2013 (Cth)

National Disability Insurance Scheme (Practice Standards—Worker Screening) Rules 2018 (Cth)

National Disability Insurance Scheme (Worker Checks) Act (NSW) 2018

Cases Cited:

AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69

BFC v The Children's Guardian [2014] NSWCATAD 90

BFX v Children's Guardian [2014] NSWCATAD 115

BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164

Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988

Commission for Children and Young People v FZ [2011] NSWCA 111

Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476

Council of the Law Society of NSW v CZD [2017] NSWCATOD 31

Council of the New South Wales Bar Association v EFA (No 2) [2021] NSWCATOD 84

FBC v Children’s Guardian [2021] NSWCATAD 286

FPV v Children’s Guardian [2023] NSWCATAD 59

John Fairfax and Sons Limited v Police Tribunal (1986) 5 NSWLR 465

Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176

Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32

LA v Commissioner for Children and Young People [2012] NSWSC 1454

Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1

R v Commission for Children and Young People [2002] NSWIRComm 101

Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88

Roberts v Balancio (1987) 8 NSWLR 436

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152

Tilley v Children’s Guardian [2017] NSWCA 174

YG & GG v Minister for Community Services [2002] NSWCA 247

Texts Cited:

None cited

Category:Principal judgment
Parties: Emmanuel Olunwabusor (Applicant)
Children’s Guardian (Respondent)
Representation: Applicant (Self Represented)
Crown Solicitor (Respondent)
File Number(s): 2022/00342251
Publication restriction: Nil

Reasons for Decision

Introduction

  1. The applicant, by an application dated 10 November 2022 and filed 14 November 2022, seeks administrative review pursuant to section 41(1) of the National…

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Details
Case
[2023] NSWCATAD 199
Decision Date

CaseChat Overview and Summary

The case of Olunwabusor v Children's Guardian involved the applicant, Olunwabusor, contesting the decision of the respondent, the Children's Guardian, to issue them with an exclusion and refuse to grant them a clearance under the National Disability Insurance Scheme (NDIS) Worker Checks. The dispute centred on whether the risk of harm to children posed by the applicant warranted such a decision, and whether the non-publication order was appropriate given the principles of open justice. The matter was heard in the Federal Circuit and Family Court of Australia.

The central legal issues before the court were whether the risk of harm posed by the applicant to children was real and appreciable, likely or significant, and whether the evidence was sufficient to support the decision. Additionally, the court considered whether the non-publication order was justified under the circumstances, balancing this against the principle of open justice.

The court found that the evidence presented was sufficient to establish a real and appreciable risk of harm to children, and that this risk was likely to be significant. It was determined that the weight of the evidence supported the respondent's decision. The court also found that the non-publication order was appropriate, as it served the interests of justice by protecting the welfare of the children involved.

The decision of the respondent, dated 2 August 2022, to issue the applicant with an exclusion and refuse to grant them a clearance was affirmed by the court. The court upheld the findings that the risk of harm was both real and appreciable and that the non-publication order was warranted in the circumstances.

Orders

Orders of the court

The decision of the respondent dated 2 August 2022 to issue the applicant with an exclusion and refuse to grant the applicant a clearance is affirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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