Office of the Children’s Guardian v DVR [2022] NSWSC 1036

Supreme Court New South Wales

Medium Neutral Citation: Office of the Children's Guardian v DVR [2022] NSWSC 1036 Hearing dates: 8 December 2021 Date of orders: 4 August 2022 Decision date: 04 August 2022 Jurisdiction: Common Law Before: Harrison AsJ Decision: (1) The NSW Civil and Administrative Tribunal's decision in proceedings DVR v Children's Guardian [2021] NSWCATAD 223 dated 30 July 2021 is set aside. (2) The proceedings are remitted back to the President of the NSW Civil and Administrative Tribunal for determination according to law. (2) The defendant is to pay the plaintiff's costs. Catchwords: ADMINISTRATIVE LAW – judicial review ­– appeal against decision of the NSW Civil and Administrative Tribunal – Child Protection (Working with Children) Act 2012 (NSW) – working with children check clearance – Whether the Tribunal misconstrued the concept of 'risk' in their assessment under s 18(1) –Whether the Tribunal failed to consider the accumulative weight of the allegations – Whether the Tribunal erred in its application of s 30(1A) – Whether the Tribunal provided adequate reasons – Appeal dismissed Legislation Cited: Administrative Decisions Act 1997 (NSW) Child Protection (Working with Children) Act 2012 (NSW) ss 4, 13, 14, 15, 17, 18, 27, 30(1A) Children (Criminal Proceedings) Act 1987 (NSW), ss 15A Civil and Administrative Tribunal Act 2013 (NSW) cl 17(1)(a) of Schedule 3, s 62(3) Crimes Act 1900 (NSW) ss 61M, 66C Police Act 1990 (NSW) s 181D Cases Cited: Accident Insurance Mutual Holdings v McFadden (1993) 31 NSWLR 412 Alfred v Walter Construction Group Ltd [2003] FCA 993 BKE v Children's Guardian [2015] NSWSC 523 CGR v Office of Children's Guardian [2018] NSWSC 26 Children's Guardian v CF1 [2020] NSWSC 1673 Children's Guardian v CXZ [2019] NSWSC 1083 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 Commissioner for Children and Young People v V [2002] NSWSC 949 CXZ v Children's Guardian [2020] NSWCA 338 M v M [1988] HCA 68; 266 CLR 69 McNamara v Consumer Trade & Tenancy Tribunal (2005) 221 CLR 646 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26 Sorby v The Commonwealth (1983) 152 CLR 281 Tilley v Children's Guardian [2017] NSWCA 174 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 Category: Principal judgment Parties: Office of the Children's Guardian (Plaintiff) DVR (Defendant) Representation: Counsel: Z. Heger with C. Robertson (Plaintiff) L. Sims (Defendant)