Hunter Support Services Pty Ltd v The Children's Guardian [2005] NSWSC 616

New South Wales Supreme Court

CITATION : Hunter Support Services Pty Ltd v The Children's Guardian [2005] NSWSC 616

HEARING DATE(S) : 24 June, 2005

JUDGMENT DATE : 24 June 2005

JURISDICTION : Equity Division

JUDGMENT OF : Palmer J

DECISION : "Individual" does not include "corporation"; Plaintiff's Summons dismissed.

CATCHWORDS : STATUTORY INTERPRETATION - WORDS AND PHRASES - "INDIVIDUAL" - Whether "individual" in Regulation 20(1)(c) Children and Young Persons (Care and Protection) Regulations, 2000 (NSW) includes "corporation".

- Children and Young Persons (Care and Protection) Act 1998 (NSW) - Chapter 10, s.136, s.137 LEGISLATION CITED : - Children and Young Persons (Care and Protection) Regulations, 2000 (NSW) - clauses 20, 22A, 36 - Interpretation Act 1987 (NSW) - s.5, s.21

Blue Metal Industries Ltd v R.W. Dilley [1970] AC 827 Duperouzel v Cameron [1973] WAR 181 CASES CITED : Hall v Jones (1942) 42 SR(NSW) 203 Knightsbridge Estates Trust Ltd v Byrne [1940] AC 613B Taxation, Deputy Commissioner of (NSW) v Mutton (1988) 79 ALR 509

Hunter Support Services Pty Ltd - Plaintiff PARTIES : The Children's Guardian - Defendant

FILE NUMBER(S) : SC 2742/05

R.H. Taperell - Plaintiff COUNSEL : S. Free (Sol) - Defendant

Cantle Carmichael Lawyers - Plaintiff SOLICITORS : Crown Solicitor - Defendant

LOWER COURT JURISDICTION :

Issues

1 The Plaintiff's Summons raises a short but novel point of construction as to the meaning of the word "individual" in the Regulations made under the Children and Young Persons (Care and Protection) Act 1998 (NSW) (respectively "the Regulations" and "the Act"). 2 The Plaintiff company carries on the business of providing residential care placements for children in New South Wales. It has employed a large number of people to provide short, medium and long term care for children, as required by the Department of Community Services. It currently holds an interim accreditation as a "designated agency" under Regulation 22A of the Regulations. 3 Under Regulation 20, a "designated agency" may authorise "an individual" to be an "authorised carer" of children for the purposes of the Act and the Regulations. The Plaintiff, as a "designated agency", has hitherto authorised its employees as "authorised carers". 4 The Plaintiff now intends to restructure its business. Rather than directly employing "authorised carers", it intends to enter into contracts with subsidiary companies whereby those subsidiaries will provide care; the subsidiaries will then directly employ persons whom the Plaintiff will authorise under Regulation 20 as "authorised carers". 5 The Defendant is appointed under Chapter 10 of the Act to perform various functions under the Act and Regulations. By clause 36(1) of the Regulations, the Defendant is responsible for the accreditation of "designated agencies". 6 The Defendant contends that Regulation 20 of the Regulations does not permit the Plaintiff, as a "designated agency", to authorise as "authorised carers" persons who are employees of another corporation. The Defendant says that a "designated agency" may authorise as an "authorised carer" only a natural person who is employed directly by the "designated agency" or a natural person who is employed by another natural person. 7 The Plaintiff seeks declaration that: "On the true construction of Regulation 20(1)(c) of the Children and Young Persons (Care and Protection) Regulation, 2000 (NSW), a designated agency, within the meaning of the Children and Young Persons (Care and Protection) Act 1998 (NSW), may authorise as an authorised carer a person who is employed by a body corporate which is engaged by the designated agency under a contractual arrangement (other than as an employee) to care for children and young persons in the course of his of her duties." 8 Regulation 20(1)(c) relevantly provides: 1) A designated agency may authorise an individual belonging to one of the following classes of individuals as an authorised carer, but only if the designated agency has carried out an assessment of the individual under subclause (3) and has determined, following that assessment, that the individual is suitable to be an authorised carer: