Basten JA at [1]; Meagher JA at [49]; Leeming JA at [50]
Decision:
(1) With respect to the non-publication order made on 21 June 2017 –
(a) revoke the order to the extent that it prohibits publication of material identifying the appellant, and (b) order that there continue to be a prohibition on the publication of material that could identify the appellant’s previous fiancée or any other person who had complained of prior misconduct by the appellant.
(2) Dismiss the appeal from the judgment of Fullerton J delivered on 8 June 2016.
(3) Order that the appellant pay the respondent’s costs in this Court.
Catchwords:
CHILD WELFARE – applicant appealed from NCAT decision affirming refusal of Children’s Guardian to grant working with children check clearance – applicant previously charged with disqualifying offences in circumstances where proceedings discontinued – whether applicant subject to assessment requirement within meaning of Child Protection (Working with Children) Act 2012 (NSW) s 14 – whether NCAT applied incorrect legal test and reversed onus of proof in determining whether satisfied that applicant posed risk to safety of children under s 18(2)
WORDS AND PHRASES – Child Protection (Working with Children) Act 2012 (NSW) Sch 1 cl 1(1) – whether “proceedings have been commenced” against applicant for purposes of determining whether applicant subject to assessment requirement
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 13 June 2012
Category:
Principal judgment
Parties:
Christopher John Tilley (Appellant) Children’s Guardian (Respondent)
Representation:
Counsel: Dr R Della-Bosca as agent (Appellant) Mr I Bourke…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Tilley v Children's Guardian [2017] NSWCA 174
Case
[2017] NSWCA 174
Decision Date
CaseChat Overview and Summary
The applicant appealed to the Court of Appeal of New South Wales from a decision of the Supreme Court of New South Wales, which had affirmed a decision of the NSW Civil and Administrative Tribunal (NCAT). NCAT had affirmed the refusal of the Children's Guardian to grant the applicant a clearance to work with children. The dispute concerned whether the applicant was subject to an assessment requirement under the *Child Protection (Working with Children) Act 2012* (NSW) and whether NCAT had applied the correct legal test and reversed the onus of proof when determining if the applicant posed a risk to children.
The primary legal issues before the Court of Appeal were whether the applicant was subject to an assessment requirement within the meaning of section 14 of the *Child Protection (Working with Children) Act 2012* (NSW), and whether NCAT erred in its application of section 18(2) of the Act. Specifically, the court considered whether the phrase "proceedings have been commenced" in Schedule 1, clause 1(1) of the Act applied to the applicant, given that proceedings against him for disqualifying offences had been discontinued. The applicant also argued that NCAT had incorrectly reversed the onus of proof by requiring him to demonstrate he did not pose a risk, rather than the Children's Guardian proving he did.
The Court of Appeal held that the phrase "proceedings have been commenced" in the context of Schedule 1, clause 1(1) of the Act referred to the initiation of proceedings, and that the discontinuation of proceedings meant they were no longer "commenced" for the purposes of triggering the assessment requirement. However, the court found that NCAT had correctly applied the law in relation to the onus of proof under section 18(2), which requires the Children's Guardian to be satisfied that the applicant poses a risk to children. The court determined that NCAT had not reversed the onus of proof and had applied the correct legal test.
The appeal was dismissed. The Court of Appeal also made orders revoking a non-publication order to the extent that it prohibited publication of material identifying the appellant, but maintained the prohibition on identifying his previous fiancée or any other complainant. The appellant was ordered to pay the respondent's costs.
Orders
Orders of the court
(1) With respect to the non-publication order made on 21 June 2017 –
(a) revoke the order to the extent that it prohibits publication of material identifying the appellant, and
(b) order that there continue to be a prohibition on the publication of material that could identify the appellant’s previous fiancée or any other person who had complained of prior misconduct by the appellant.
(2) Dismiss the appeal from the judgment of Fullerton J delivered on 8 June 2016.
(3) Order that the appellant pay the respondent’s costs in this Court.