PR v Director General, Department of Community Services

[2005] NSWADT 38

CITATION:	PR v Director General, Department of Community Services & Anor [2005] NSWADT 38
DIVISION:	Community Services Division
PARTIES:	APPLICANT PR RESPONDENT Director General, Department of Community Services JOINED PARTY 'OY' THIRD PARTY Barnados Australia
FILE NUMBER:	044031
HEARING DATES:	17/02/2005
SUBMISSIONS CLOSED:	02/17/2005
DATE OF DECISION:	02/23/2005
BEFORE:	Kelly T (Deputy President)
APPLICATION:	Joinder of party
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Children and Young Persons (Care and Protection) Act 1998 Community Services (Complaints, Reviews and Monitoring) Act 1993
CASES CITED:
REPRESENTATION:	APPLICANT J Thornton, barrister RESPONDENT D Wells, solicitor THIRD PARTY D Falloon, barrister
ORDERS:	ORDERS MADE 17/02/2005; The application by Barnados Australia to be joined as a party to these proceedings is refused.

(1A) This section applies only to the following:

(a) proceedings in the Community Services Division of the Tribunal,

(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,

(b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983,

(b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983

(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.

(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:

(a) who appears as a witness before the Tribunal in any proceedings, or

(b) to whom any proceedings before the Tribunal relate, or

(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,

whether before or after the proceedings are disposed of.

Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.

(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.

(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

1 As a result of Docs determining to remove the child ‘OY’ from the care and control of the applicant an application was made to the Tribunal for a review of that decision on 15 December 2004. The Applicant also sought a stay of the decision which was heard and granted on 22 December 2004, subject to conditions, by a Tribunal comprising Judicial Member Smythe and Members Monaghan-Nagle and Moss. The Tribunal then appointed a guardian ad litem and adjourned the application.

2 On 17 February 2005 the matter was listed before me for directions. On that day Barnados Australia appeared and sought an order that it be joined as a party. Docs did not oppose that application. The applicant did oppose it.

3 Evidence from the bar table is not in dispute. Barbados is an agent of Docs under a contract, for recruiting carers and placing children, and did so in respect of the applicant and ‘OY’. It has the immediate responsibility for the management of the child’s care. The decision to terminate the placement was a decision of Docs that was arrived at after consultation between Docs and Barnados.

4 Barnados stated that should the applicant succeed in her application, it would have to continue to manage the placement of the child with the applicant, and this made it a person affected by the decision.

5 The applicant argued that as an agent of Docs it has no interest that can be separated from that of Docs; and at best Barnados' only interest is that of the welfare of the child, which is the common interest of the applicant and the respondent and the guardian ad litem.

6 There is full co-operation between Docs and Barnados in opposing the application. Staff of Barnados will be witnesses on behalf of Docs. Barnados has no present intention of calling any witness that Docs is not going to call. Barnados emphasised that one of its reasons for seeking to be a party to the proceedings was to engage in the role of assisting the Tribunal. The credit of one of Barnados’ witnesses was likely to be in issue.

The law

7 S 245 of the Children and Young Persons (Care and Protection) Act 1998

Decisions that are reviewable by Administrative Decisions Tribunal

(1) For the purposes of section 28 (1) (a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993, any of the following decisions made under or for the purposes of this Act or the regulations are reviewable by the Administrative Decisions Tribunal,

(c) a decision of the relevant decision-maker to grant to, or to remove from, an authorised carer the responsibility for the daily care and control of the child or young person,

8 The relevant sections of the Administrative Decision Tribunal Act 1997 are:
Section 67: Parties to proceedings before Tribunal:

(2) The parties to proceedings before the Tribunal for a review of a reviewable decision are:

(a) any person who, being entitled to do so, has duly applied to the Tribunal for a review of the decision, and

(b) the administrator who made the decision, and

(c) if the Attorney General intervenes in the proceedings under section -the Attorney General, and

(d) any other person who has been made a party to the proceedings by the Tribunal in accordance with subsection (4), and

(e) any person specified by or under any enactment as a party to the proceedings.

(4) The Tribunal may, by order, make a person who is not a party to proceedings for:
(a) an original decision, or

(b) a review of a reviewable decision, or

(c) an external appeal,

a party to the proceedings, either of its own motion or on the written application of the person, if the Tribunal is satisfied that the interests of the person are likely to be affected by the original decision or are affected by the reviewable decision or the decision that is the subject of the external appeal.

Section 8: What is a reviewable decision?

A "reviewable decision" is a decision of an administrator that the Tribunal has jurisdiction under an enactment to review.

Section 9: Who is an administrator?

(1) An "administrator", in relation to a reviewable decision, is the person or body that makes (or is taken to have made) the decision under the enactment concerned.

(2) The person or body specified by an enactment as a person or body whose decisions are reviewable decisions is taken to be the only administrator in relation to the making of a reviewable decision even if some other person or body also had a role in the making of the decision.

Reasons:

9 S 245(c) of the CYPC(C&A) Act provides for a review of the decision to remove the child.

10 S 67(2) of the ADT Act states that the only possible parties to such a review may be the applicant; the administrator who made the decision; the Attorney General; anyone who is made a party under sub section 4; or any one named in an enactment

11 S 8 of the ADT Act defines a reviewable decision as that of the administrator who made the decision.

12 S 9(1) of the ADT Act defines an administrator as the person who makes the decision. In this application this is the Director General of Docs.

13 S 9(2) of the ADT Act states that the decision maker is the sole administrator, even if some other person or body had a role in making the decision. In this application the Director General of Docs made the decision and Barnados had a role in its making.

14 S 67(2) specifies the only classes of persons who can be joined. S 67(2)(b) specifies the administrator as one of these. S 9 says a body such as Barnados who had a role with the administrator in making the decision cannot be included as an administrator.

15 Thus Barnados is excluded from being in the class of administrator which can be joined as a party under s67(2)(b).

16 The general provision of s67(4) is to provide a discretion to join those persons who are not included in the specific classes which can be parties as of right. If a person is specifically excluded form from a class who can appear as of right, a person can not rely on the general provision of s 67(4).

17 Alternatively, Barnados, as agent for Docs does not and cannot have an interest that can be affected under s 67(4), any more than the officer who as the delegate of the Director General, made the decision to remove the child. Barnados is merely an agent of Docs.

18 Further and in the alternative, s67(4) states that the Tribunal may only join a person if it is satisfied that person has interests that are likely to be affected by the determination. This is a discretionary power. The Tribunal must be satisfied that there is a sufficient interest, otherwise it might be obliged to join various relatives and friends of the applicant, the child, the natural parents, as well as the child’s teachers and various family friends, and others, which could be unnecessarily chaotic.

19 I am not persuaded that Barnados has a sufficient interest. It has no witnesses to present that the existing parties will not be presenting. It has no witnesses who cannot be represented by Docs. It has no interest that is different to that of Docs. It is able to fully consult with the representatives of Docs on the conduct of the case. Whilst the Tribunal always appreciates assistance, this does not enhance Barnados claim of an interest.

20 Docs referred me to the Community Services (Complaints, Reviews and Monitoring) Act 1993, In particular:

S 28(1)(b):(1) A person may apply to the Tribunal for a review of any of the following decisions:
(a) a decision that is a reviewable decision under section 193 of the Adoption Act 2000 , section 36 of the Adoption Information Act 1990, section 20 of the Disability Services Act 1993 or section 245 of the Children and Young Persons (Care and Protection) Act 1998 ,

(b) a decision made by a person or body under the community welfare legislation where the legislation expressly provides that the decision is a reviewable decision for the purposes of this section,

S 5(1)9(b) Administration of community welfare legislation

(1) The determination of an issue under this Act, and any decision or recommendation on a matter arising from the operation of this Act, must not be made in a way that is (or that requires the taking of action that is):

(b) inconsistent with the way in which those resources have been allocated by the Minister for Community Services, the Minister for Aged Services, the Minister for Disability Services, the Director-General of the Department of Community Services or the Director-General of the Ageing and Disability Department in accordance with Government policy
21 Docs submitted that as it does not have the resources in the Illawarra to manage the placement of ‘OY’, and an adverse decision could have an adverse effect on Docs’ resources. Furthermore any decision that would affect Barnados’ contract with Docs would be contrary to this statutory provision. As it was not disputed that Barnados is contracted to deal with any child that Docs refers it, and as any possible decision that this Tribunal might make would not affect that contract, I can not see any reason to refuse to join Barnados because of these statutory provisions.

ORDER

The application by Barnados Australia to be joined as a party to these proceedings is refused.

Amendments

9 May 2005 - Applicant's name anonymised - cover sheet