Office of the Children’s Guardian v EQE [2022] NSWSC 871

Supreme Court New South Wales

Medium Neutral Citation: Office of the Children's Guardian v EQE [2022] NSWSC 871 Hearing dates: 22 June 2022 Date of orders: 5 July 2022 Decision date: 05 July 2022 Jurisdiction: Common Law Before: Davies J Decision: (1) The order made by the New South Wales Civil and Administrative Tribunal, Administrative and Equal Opportunity Division, granting the defendant a Working With Children Check Clearance is set aside. (2) Remit the proceedings to the Tribunal, differently constituted, to be determined according to law. (3) The defendant is to pay the plaintiff's costs of the proceedings. (4) The defendant is to have a certificate under the Suitors Fund Act 1951 (NSW). Catchwords: ADMINISTRATIVE LAW – judicial review – appeal from decision of New South Wales Civil and Administrative Tribunal – refusal of Working With Children Check Clearance – defendant charged with multiple counts of indecent assault and sexual assault of a minor – defendant found not guilty following criminal trial – application to NCAT for review of clearance check cancellation – whether Tribunal misapplied the statutory test in s 18(2) of the Child Protection (Working with Children) Act 2012 – whether Tribunal erred by misconstruing or misapplying s 30(1A) of the Act – where Tribunal was unable to make positive finding that events occurred but found on balance of probabilities they did not occur – where Tribunal erred by not considering whether the defendant posed a real risk to safety of children – order of Tribunal set aside Legislation Cited: Child Protection (Working with Children) Act 2012 (NSW) ss 18, 30 Civil and Administrative Tribunal Act 2013 (NSW) Sched 3 cl 17 Crimes Act 1900 (NSW) ss 61J, 61M Suitors Fund Act 1951 (NSW) Victorian Civil and Administrative Tribunal Act 1998 (Vic) Sched 2 cl 102 Working With Children Act 2005 (Vic) s 13 Cases Cited: BKE v Office of Children's Guardian & Anor [2015] NSWSC 523 Children's Guardian v CF1 [2020] NSWSC 1673 Children's Guardian v CVE [2017] NSWSC 1342 CSW v Childrens Guardian [2017] NSWCATAD 326 CXZ v Children's Guardian [2020] NSWCA 338 ECQ v The Children's Guardian [2021] NSWCATAD 217 EQE v Children's Guardian [2021] NSWCATAD 357 M v M (1988) 166 CLR 69; [1988] HCA 68 PJR v Secretary to the Department of Justice [2006] VCAT 2455; (2006) 25 VAR 336 Secretary, Department of Justice v LMB [2012] VSCA 143 Tilley v Children's Guardian [2017] NSWCA 174 VQB v The Secretary to the Department of Justice (Review and Regulation) [2013] VCAT 789 ZZ v Secretary to the Department of Justice [2013] VSC 267 Texts Cited: Nil Category: Principal judgment Parties: Office of the Children's Guardian (Plaintiff) EQE (Defendant) Representation: Counsel: F Roughley & M Pulsford (Plaintiff) In person (Defendant)