Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Fairfield City Council v WI [2012] NSWADTAP 39 Hearing dates: 11 May 2012 Decision date: 16 October 2012 Jurisdiction: Appeal Panel - Internal Before: S Higgins, Deputy President D Patten, Deputy President Professor Goodman-Delahunty, Non Judicial Member Decision: 1.The appeal allowed in part. 2.Confirm order setting aside appellant's decision of 22 July 2010 to remove the respondent carer's name from its Family Day-Care Register. 3.Quash order that the respondent carer's name be restored to the appellant's Family Day-Care Register. 4.No order as to costs. Catchwords: Appeal - errors of law - no jurisdiction to review decision of a third party - application for review futile and of no utility - looking behind an adverse earlier finding - admissibility of evidence contradicting or inconsistent with an earlier adverse finding by a third party - applying inapplicable law - failure to give adequate reasons - taking into account irrelevant matters and failure to take into account relevant matters - making findings and reaching conclusions in the absence of a relevant third party - leave to appeal on the merits Legislation Cited: Administrative Decisions Tribunal Act 1997 Children and Young Persons (Care and Protection) Act 1998 Children (Education and Care Services National Law Application Act) 2010 Children (Education and Care Services) National Law (NSW) No 104a Children (Education and Care Services) Supplementary Provisions Act 2011 Children (Education and Care Services) Supplementary Provisions Regulation 2012 Children (Education and Care Services) Supplementary Provisions Regulation 2011 Children (Education and Care Services) Supplementary Provisions Regulation 2004(repealed) Children's Services Regulations 2004 Community Services (Complaints, Reviews and Monitoring) Act 1993 Education and Care Services National Law Act 2010 (Vic) Cases Cited: AVS Group Australia Pty Limited & Tony Sleiman v Commissioner of Police, NSW Police Force (Respondent's Application) [2012] NSWADTAP 24 AVS Group Australia Pty Limited v Commissioner of Police, NSW Police Force [2012] NSWADT 1 Brandusiou v Commissioner of Police, NSW Police Force (GD) [2011] NSWADTAP 47 Briginshaw v Briginshaw (1938) 60 CLR 336 M v M (1988) 166 CLR 69 Minister for Community Services v CE (No 2) [2002] NSWADTAP 1 Minister for Community Services v CE (No 1) [2002] NSWADTAP 7 Mouwad v Commissioner of Police, NSW Police Force (GD) [2011] NSWADTAP 50 O'Sullivan v Medical Council of New South Wales [2010] NSWADTAP 64 Sudath v Health Care Complaints Commission [2012] NSWCA 171 Warsow v Warsow [2010] FamCA 591 WI v Fairfield City Council [2011] NSWADT 279 YG & GG v Minister for Community Services [2002] NSWCA 247 Category: Principal judgment Parties: Fairfield City Council (Appellant) WI (Respondent) Representation: Counsel E Young (Appellant) R Lee (Respondent) Mathews Folbigg Lawyers (Appellant) File Number(s): 119058 Publication restriction: S126 of the Administrative Decisions Tribunal Act 1997 Decision under appeal Jurisdiction: 9108 Citation: [2011] NSWADT 279 Date of Decision: 2011-11-28 00:00:00 Before: Community Services Division File Number(s): 104025 REASONS FOR DECISION Introduction and Background 1This is an appeal by Fairfield City Council (the appellant) from a decision of the Tribunal, in which the Tribunal made an order setting aside the appellant's decision, of 22 July 2010, to remove the respondent carer's name (WI) from its Family Day-Care Register (the appellant's Register): see WI v Fairfield City Council [2011] NSWADT 279. The Tribunal also made an order, in substitution of the appellant's decision, that the appellant reinstate the respondent carer's name on its Register. Due to the sensitivity of those proceedings, the Tribunal did not name the applicant or the children the subject of those proceedings. Instead, pseudonyms were used for their names in the Tribunal's reasons for decision. We have adopted the same pseudonyms in these reasons for decision. 2The appellant has at all times been licensed to provide family day-care services for young children. A condition of the appellant's licence is to maintain a register of the names of the carers it authorises to provide family day-care services. The respondent carer, being a person authorised by the appellant to provide family day-care services at her home, had been listed on the appellant's Register since 1992. At all times the respondent carer was listed on the appellant's Register her home was within the appellant's local government area. In providing family day-care services from her home the respondent carer was effectively running her own business, subject to the terms of her authorisation and the regulatory provisions that applied to the appellant's licence and her authorisation. 3The appellant's decision to remove the respondent carer's name from its Register was made on the basis of 'the outcome of an investigation by the Joint Investigative Response Team (JIRT)' into a report of an alleged incident that occurred, on 24 June 2010, at the home of the respondent carer. JIRT is a division within the Department of Human Services, Community Services (the Department), which investigates allegations of risk of significant harm involving children and young people. 4The alleged incident concerned the respondent carer's 12-year old son (B) and a three-year-old child (F) who was being cared for by the respondent carer at the time. On the day after the alleged incident, the mother of the young child (MG) reported the alleged incident to the appellant. The appellant's record of MG's account of the alleged incident is in the following terms: '... she [MG] picked up her children from [the respondent carer]'s at around 4:30 pm. She said that on the way home, in the car, [F] made comments about his day at Family Day Care. He said to his Mum "[B] is yucky, disgusting. He did a wee on my hand". He proceeded to say that [B] has said to him that his "ayb" - arabic for penis - was a "lolly pop and you suck it". I put it [B's] in my mouth. [MG] rang her husband and, later on he took [F] to the bathroom and asked him to show him what [B] had said and asked him to do. [F] repeated the words and showed his Dad what [B] did to him. ...' 5The alleged incident was said to have occurred in the toilet of the respondent carer's home. The appellant immediately notified the Department of the alleged incident. It also contacted the respondent carer and suspended her authority the following day. The respondent carer denied that the alleged incident had occurred. 6On 21 July 2010, JIRT wrote to the appellant in the following terms: '... [The] Risk of Harm report alleged that [the respondent carer's] 12 year old son [B] indecently assaulted a child who attended the family day care services operated by [the respondent carer] whilst on the premises at [address]. The JIRT investigation into this matter is now complete, the Risk of Harm has been substantiated and [B] listed as a Person Causing Harm on Community Service's database.' As [the respondent carer] has a full time care of [B], JIRT holds concerns that other children may be at risk of significant harm whilst in the care of [the respondent carer]. Given these risks, JIRT recommends that [the respondent carer] be deregistered as a family day carer. ... 7On the basis of this letter, the appellant made a decision to remove the respondent carer's name from its Register. Subsequent to making this decision, and prior to seeking external review of the appellant's decision, the respondent carer moved to another home outside the appellant's local government area. However, the respondent carer continued to press her application for review, as she wanted to seek authorisation to continue providing family day-care services from her new home. The Appeal and grounds for appeal 8The appellant has a right to appeal the decision of the Tribunal below on a question of law: see paragraph 112(1)(b) of the Administrative Decisions Tribunal Act 1997 (ADT Act). With the leave of the Appeal Panel, an appeal may also be extended to the merits of the decision below: see paragraph 113(2)(b) of the ADT Act. 9The appellant has appealed on a number of questions of law and also seeks leave to extend the appeal to the merits. The grounds of appeal were set out in the appellant's Notice of Appeal as follows: 1.Whether the Tribunal at first instance erred in determining the respondent's jurisdictional objections in favour of the [respondent]. 2.Whether the Tribunal at first instance erred in determining the [appellant's] futility objection in favour of the [respondent]. 3.Whether the Tribunal at first instance erred in failing to give any or adequate reasons for rejecting the unchallenged evidence of numerous witnesses who gave evidence on behalf of the [appellant], which evidence comprehensively refuted the evidence of the [respondent], and preferring the evidence of the [respondent]. 4.Whether the Tribunal at first instance gave any or sufficient consideration to the evidence adduced by the [appellant] which established the indecent assault of an infant child by the teenage son of the respondent in her house while in her care. 5.Whether the Tribunal at first instance properly directed herself as to the law regarding the assessment of risk to children. 6.Whether the Tribunal at first instance properly applied the Briginshaw standard of proof. 7.Whether the Tribunal at first instance erred at law because it misdirected itself as to the matters for its determination. 8.Whether the Tribunal at first instance took into account irrelevant matters in reaching the conclusions that it did. 9.Whether the Tribunal at first instance failed to take into account relevant matters in reaching the conclusions that it did. 10.Whether the Tribunal at first instance erred in reversing the onus of proof as is apparent in paragraph 92 of its decision. 11.Whether the Tribunal at first instance erred in making the findings and reaching the conclusions it did in the absence of submissions and/or evidence from the joint investigation response team, known as "JIRT") comprising the NSW Police Force and the NSW Department of Human Services, Community Services). 10In its Notice of Reply to the Appeal, the respondent contended that the Tribunal made no errors of law as attributed to it by the appellant. The respondent also rejected the appellant's reasons for seeking leave of the Appeal Panel to extend the appeal to the merits. 11Written submissions were filed and served by both parties. The appellant also placed before the Appeal Panel a written transcript (prepared by the appellant) of the hearing before the Tribunal, on 1 June and 1 July 2011. Other than questioning the relevance of transcript to the error of law issues before the Tribunal, the respondent did not object to the Appeal Panel having regard to it. 12As there is some overlap in the questions of law raised by the appellant it is convenient to categorise these more simply as follows: (a)jurisdiction (grounds 1 and 2), (b)failure to direct itself, or apply the law (grounds 5, 6, 7 and 10), (c)failure to give any or adequate reasons in rejecting unchallenged evidence and failure to give any or sufficient consideration evidence adduced by the appellant (grounds 3 and 4), (d)took into account irrelevant matters and failed to take into account relevant matters (grounds 8 and 9), (e)made findings and reached conclusions in the absence of submissions and/or evidence from JIRT (ground 11). Relevant Legislation 13Before we deal with the grounds of appeal, it is necessary to briefly set out the applicable law. 14At the time the appellant made its decision and when the Tribunal determined the review application of the respondent carer, the applicable legislative scheme for family day-care services was set out in Chapter 12 of the Children and Young Persons (Care and Protection) Act 1998 (the Care and Protection Act) and the provisions in the Children Services Regulation 2004 (CS Regulations). Since 1 January 2012, a new legislative scheme has come into operation and Chapter 12 of the Care and Protection Act has been repealed. The new legislative scheme is based on the Victorian Education and Care Services National Law Act 2010: see section 4 of the Children (Education and Care Services National Law Application Act) 2010 No 104 and the Children (Education and Care Services) National Law (NSW) No 104a and the Children (Education and Care Services) Supplementary Provisions Act 2011. As a consequence, the CS Regulations have been amended, including an amendment of its title to the Children (Education and Care Services) Supplementary Provisions Regulation 2004. These Regulations have now been repealed and the applicable regulations are those contained in the Children (Education and Care Services) Supplementary Provisions Regulation 2012. 15It is noted that the savings provisions in the new legislative scheme retained licences and authorisations for 'children services' issued, pursuant to Chapter 12 of the Care and Protection Act, as licences and authorisations under the new legislative scheme: see sections 12 and 17 of the Children (Education and Care Services National Law Application) Act 2010. The new Regulation also contained savings provisions which preserved applications made to the Tribunal for external review under the CS Regulations prior to their 2011 amendment coming into force on 1 January 2012: see clause 30 of Schedule 2 of the repealed Children (Education and Care Services) Supplementary Provisions Regulation 2004, regulation 119 of the Children (Education and Care Services) Supplementary Provisions Regulation 2012. We have not considered in any detail these transitional provisions, or the provisions of the new legislative scheme in regard to family day-care services other than to note that the same underlying principles that regulated these services continue to apply. 16These principles include 'the safety, welfare and well-being' of children attending family day- care services 'are paramount': see subsections 9(1) of the Care and Protection Act and section 3 of the Children (Education and Care Services) National Law (NSW) No 104a. 17Under Chapter 12 of the Care and Protection Act, the term 'children's service' was defined in subsection 200(1) to mean 'a service that provides education or care (other than residential care), or both education and care, whether directly or indirectly, for one or more children under the age of 6 years and who do not ordinarily attend school (disregarding any children who are related to the person providing care).' 18Section 204 of the Care and Protection Act provided that 'prescribed children's service may be provided only by a person who is authorised to provide the type of service concerned by a service provider licence.' Section 205 made provision for the grant of a service provider licence authorising a person or persons to provide a specified type, or types of prescribed children's services. There is no dispute that the appellant is the holder of a service provider licence to provide family day-care services. Section 208 provided that a service provider licence was subject to any condition imposed by the Care and Protection Act or prescribed by the Regulations and any other conditions imposed by the Director-General at the time the licence was granted or subsequent to the grant of the licence. A contravention of a condition of a licence by a licensee constituted an offence, which is punishable by a fine. 19Regulation 25 of the CS Regulations provided that for the purposes of section 208 of the Care and Protection Act, the prescribed conditions of a service provider licence were those contained in Parts 3, 4, 5, 6 and 7 to the extent they were relevant to the type, or types of prescribed children's services provided by the licensee. 20Regulation 100 of the CS Regulations required a licensee of a family day-care children's service to maintain a family day-care Register. That Regulation was in the following terms: 100 Family day care register (1) The licensee of a family day care children's service is to cause a register of the following particulars to be kept in relation to each family day care carer of the service: (a) the name, address and home telephone number of the carer, (b) the maximum number of children, as determined by the authorised supervisor, who may be placed with the carer at any one time, (c) the number of children who have been placed with the carer at any one time. (2) The licensee of a family day care children's service is not to enter the name of a person as a family day care carer on the register for the service unless the person is an adult who, in the opinion of the authorised supervisor: (a) has an appropriate understanding of young children's needs and development, including: (i) the individual differences between children, and (ii) activities that stimulate a child's growth and development, and (iii) nutrition, health, hygiene and safety, and (iv) behaviour management, and (b) is responsive to children, and (c) is physically and emotionally able to care for young children, and (d) is the holder of a current first aid certificate or is otherwise appropriately qualified to provide first aid in a medical or other emergency, and (e) is able to communicate effectively with adults, and (f) is aware of and sensitive to the needs of young children and their families, including children from a range of cultures and religions and children with disabilities, and (g) is a fit and proper person to be concerned in the provision of the service, and (h) has a general understanding of the relevant requirements of this Regulation. (3) Before entering the name of a person on the register for the service as a family day care carer, the licensee must ensure that: (a) an inspection is carried out of the prospective carer's home, and (b) an assessment is made as to whether the prospective carer's home is adequate for provision of the service. (4) The licensee is not to enter the name of a person on the register for the service as a family day care carer unless the person agrees in writing that his or her continued registration is conditional upon the carer permitting the licensee (or his or her delegate) and any officer of the Department to inspect the carer's home during the normal hours in which the children's service is provided by the carer. (5) The licensee is to issue a certificate of registration in the approved form to each person whose name is entered on the register for the service as a family day care carer. 21Regulation 101 made provision for the removal of the name of a family day-care carer from a licensee's register. It relevantly provided as follows: '101 Removal of names from family day-care Register (1) the Director-General may direct ... (2) on receiving a direction ... (3) nothing in this clause prevents the licensee of a family day-care children's service from removing the name of a family day-carer from the family day-care Register for the service at any time and for any reason.' 22In this case the appellant removed the name of the respondent carer form its Register under sub-regulation 101(3). This is a wide discretion for removal. However, it must also be exercised in accordance with the objects and principles of the Care and Protection Act. These are set out in sections 8 and 9 of that Act and relevantly provide: 8 What are the objects of this Act? The objects of this Act are to provide: (a) that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them, and (b) that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and (c) that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment. 9 Principles for administration of Act (1) This Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount. (2) ... 23There was no dispute that the decision of the appellant to remove the name of the respondent from its Register is a reviewable decision by the Tribunal: see section 28(1)(a) of the community Services (Complaints, Reviews and Monitoring) Act 1993, paragraph 245(g) of the Care and Protection Act and regulation 123 of the CS Regulations, as they applied at that time. Errors of law (a) Jurisdiction 24There were 3 aspects to the appellant's arguments on jurisdiction. Each of these was also argued before the Tribunal below. 25The first aspect was based on the contention that the essence of the respondent carer's application for review was a review of the decision of JIRT and not the decision of the appellant. The appellant noted that the Tribunal had accepted, during the course of the hearing, that it had no jurisdiction to look behind the decision of JIRT. However, in spite of this acceptance, the appellant contended the Tribunal did in fact look behind that decision and in doing so exceeded its jurisdiction. 26In support of its contention, the appellant pointed to paragraphs [82] and [91] of the Tribunal's reasons for decision. These relevantly state as follows: 82.Having regard to the limited factual material that was before the administrator in relation to the matters raised in this application, and the lack of further material provided to this Tribunal for the purpose of its review function, there is simply no basis upon which the Tribunal could - or should - make any assessment of the primary administrator's decision which would responsibly give effect to the aims and purposes of the protective legislation. There is no material before the Tribunal that provides any information as to how the allegations that gave rise to the critical incident were tested and, since no information or material has been provided to the Tribunal in order to assess the means, scope and specific outcome of any JIRT investigation, it is unclear as to what weight, if any, can be applied to the letter from the Bankstown JIRT to Fairfield City Council dated 21 July 2010 regarding the risk of harm to children in the applicant's care. ... 91.Having been deprived of any useful material as to the method and scope of the JIRT's investigation of the allegations made with regard to B, this tribunal is left in the unfortunate situation of being unable to make any assessment as to the truthfulness and reliability of the accounts of the children. Further, and perhaps more significantly, the tribunal has found that the evidence with regard to the various accounts of the critical incident given by the child F's parents were inconsistent. 27We agree with the appellant that the Tribunal had no jurisdiction to review the inquiries undertaken by JIRT or the findings it had made. However, this did not mean that the Tribunal was prevented from examining all the material before it in regard to the alleged incident for the purpose of determining whether the decision to remove the respondent carer's name from its Register was the correct and preferred decision: see subsection 63(1) of the Administrative Decisions Tribunal Act 1997 (ADT Act). 28We note that at paragraph [12] and [13] of its decision, the Tribunal expressly stated that the decision the subject of review was the decision of the appellant and not the decision of JIRT. The Tribunal went on to explain, at paragraph [14], its role in regard to the respondent carer's review application. It specifically said that the Tribunal 'stands in the shoes' of the appellant and is required to make the 'correct and preferable decision', at the time of hearing, having regard to the material before it, which included not only the material available to the appellant at the time it made its decision but any other material that had been placed before the Tribunal. In making this statement the Tribunal made specific reference to subsection 63(1) of the ADT Act. The appellant has not cavilled with this statement, which is clearly a correct statement of the Tribunal's jurisdiction. In our view, paragraphs [82] and [91] of the Tribunal's decision, need to be read in the context of this statement and the decision as a whole. 29The material before the Tribunal included the letter from JIRT. Its contents were clearly relevant to the matters in issue before the Tribunal as the external finding of JIRT formed the basis on which the appellant had made its decision to remove the respondent carer from its Register. The appellant continued to rely on this finding before the Tribunal. As we understand the appellant's contentions, it was in no position to question the finding of JIRT and the same applied to the Tribunal. As a consequence the Tribunal could not take into consideration any material put forward by the respondent carer that challenged or contradicted the prior external finding of JIRT. 30In our view, the appellant's contention is misconceived in a number of ways. 31In a recent decision, the Appeal Panel, considered this issue in the context of a review application of a decision of the respondent agency to cancel the appellant/applicant's firearms licence and security licence: see Brandusiou v Commissioner of Police, NSW Police Force (GD) [2011] NSWADTAP 47. The respondent Commissioner had cancelled the appellant's firearms and security licences on the basis of earlier adverse findings made against him by the Independent Commission Against Corruption (ICAC). These findings included a recommendation that the appellant be prosecuted for specified offences. 32At the hearing before the Tribunal below, the appellant/applicant sought to place material before the Tribunal, which challenged the earlier adverse findings made against him by the ICAC. On appeal, the Commissioner respondent argued that the appellant/applicant was prevented from placing such material before the Tribunal. 33After noting that the proceedings before the Tribunal were disciplinary in nature, the Appeal Panel went on to consider a number of authorities on this issue: see at [19] and following. At [20] to [24] the Appeal Panel said the following: 20. The law is clear that a disciplinary or similar body must hear the case put by a licensee challenging the prior external finding that has led that body to take disciplinary action against the licensee. The Tribunal did that. But it must also give 'due regard' to the material. 21. The leading case is General Medical Council v Spackman [1943] AC 627. In that case the tribunal deregistered a doctor on the basis of a divorce court finding that he had had an adulterous relationship with a woman patient. At the show cause hearing it refused the doctor's application that it 'look behind' the court finding. It refused to allow the doctor to place before it evidence which, he asserted, would show that he had not been involved in any adulterous relationship. The House of Lords overruled the tribunal, and remitted the case to it to reconsider. 22. Australian courts have applied these principles. Two leading illustrations are Ziems v Prothonotary of the Supreme Court of NSW [1957] HCA 46; (1957) 97 CLR 279; and A Solicitor v Council of the NSW Law Society [2004] HCA 1; 216 CLR 253; 204 ALR 8; 78 ALJR 310. In both of these cases, the primary tribunal (State Supreme Courts exercising their disciplinary powers over legal practitioners) had struck practitioners off the roll on the ground that they were no longer fit to practise law because of a serious criminal conviction. In Ziems the conviction was for manslaughter and the lawyer was sentenced to be imprisoned with hard labour for a period of two years. In the second case the practitioner was convicted of four counts of aggravated indecent assault on two girls under 16, and to whom he was the stepfather. 23. The High Court overturned the strike off orders. In both cases the Court was of the view that the primary tribunal had not given due regard to material that the appellants had sought to rely on in extenuation of their conviction. Both cases held that the fact of serious conviction, even one leading to imprisonment, is not necessarily determinative of the fitness of a lawyer to remain a lawyer. 24. In Ziems , the Court (by majority) took into account the unfairness in the way the prosecution case was conducted, especially the failure to produce evidence going to the mental state of the appellant at the time of the fatal car accident that had led to his prosecution. In A Solicitor the High Court took account of comments by the sentencing judge to the effect that the sexual misconduct was unlikely to be repeated having regard to the state of mental health of the appellant at the time, and to material in relation to the appellant's good conduct in the period since the conviction and the completion of his sentence. In both cases the High Court emphasised that the conduct of which the lawyer had been convicted was unrelated to the work of a lawyer. 34This issue was also recently considered by the Court of Appeal in, Sudath v Health Care Complaints Commission [2012] NSWCA 171 (13 June 2012). The issue before the Court was whether it was an abuse of process for the Medical Tribunal to receive evidence from the respondent doctor, which attacked conduct that had been the subject of an earlier conviction or finding (per Basten JA at [32] - [47] and Meagher JA at [83] - [100]). Disciplinary action was being taken against the doctor on the basis of his earlier conviction and the Medical Tribunal had rejected the doctor's evidence on the grounds that it could not look behind the conviction. The Court found that it was not an abuse of process to allow the practitioner to place evidence before the tribunal, which contradicted or was consistent with the earlier findings and conviction as it was not proffered for the purpose of impugning the convictions or the fairness of his trial (per Basten JA at [49] and Meagher JA at [101]). In that case, the evidence was being proffered for the purpose of determining the doctor's fitness and propriety as at the time of the hearing of the disciplinary proceedings. The Court of Appeal noted that it was ultimately a matter for the Medical Tribunal to determine, what weight, if any, was to be given to the evidence of the doctor, in light of findings that had been made in the criminal proceedings. It was noted that they were made following an open hearing in a court of law. 35Although the issues in the application before the Tribunal below did not concern the respondent carer's fitness and propriety, in our view the principles set out by the Court of Appeal and the Appeal Panel equally applied to the proceedings before the Tribunal. They were also disciplinary in nature, in that the decision the subject of review was a disciplinary decision of the appellant to remove the respondent carer from its Register on the ground of a risk of harm if children were to be placed into her care. They were also protective in nature, as were the proceedings in Brandusiou and Sudath. 36In our view, the Tribunal dealt with the material before it appropriately. At paragraphs [12] and [13] of the Tribunal's decision, the Tribunal noted that the respondent carer was not seeking to challenge JIRT's findings, nor was she seeking an order that the appellant authorise her as a carer. Paragraphs [82] and [91] of the Tribunal's decision merely contain the Tribunal's conclusions on the material that was before it, including the information contained in the JIRT letter to the appellant and JIRT's responses to summons served on it in regard to its 'investigation'. As noted by the Tribunal, no further material was provided. In our view, in reaching its conclusions, these were reached in the exercise of the Tribunal's review function in reviewing the appellant's reviewable decision. The conclusions did not set aside the earlier finding of JIRT as set out in its letter. 37Accordingly, we find that the respondent has not established this ground of appeal. 38Another jurisdiction ground relied on by the appellant arose from the fact that the appellant no longer resided within the appellant's local government area. The appellant argued that, as at the time her application was before the Tribunal, the respondent carer no longer resided within its local government area, the appellant ceased having any authority to place her name on its Register, or on the register of the Council in which she now resided. As the appellant could not register her, nor could the Tribunal. 39The appellant pointed to paragraph [19] of the Tribunal's decision as evidencing an error of law in this regard. The particular words relied on by the appellant are: 19. ... [There] was 'no evidence before this tribunal that by reason of the applicant having moved from one local government area to another, she was no longer eligible to remain on this particular licensee's register, or was subject to immediate disqualification and removal from the Register.' 40This remark of the Tribunal was made immediately after the Tribunal had noted that the CS Regulations did not impose any geographical prerequisite to the eligibility of a family day-carer to be entered onto or remain on the register held by a particular licensee. When the above remark is read in its proper context, the use of the word 'evidence' was a reference to the appellant having no been able to point to any provision in the relevant legislation that restricted a licensee to only authorise carers who resided within their local area or some other geographical limitation. 41The appellant sought to argue that certain provisions in the CS Regulations should be construed to have this effect. We note that regulation 113 of the CS Regulation required a registered carer to inform the licensee of any changes to his/her home. However, regulation100 contains no geographical limitation as to which carers a licensee is able to place on its register. Nor was the appellant able to point to a provision that required a licensee to remove the name of a carer on its register where the carer moves out of the licensee's local area. We accept that as a matter of practice a licensee may impose a geographical restriction so that it can ensure that it meets its obligations under its licence. However, this is not a matter that goes to the Tribunal's jurisdiction to hear the respondent carer's application for review. 42The respondent carer's move was, however, a fact the Tribunal was required to take into account in determining the application under subsection 63(3) of the ADT Act, which provides: 63 Determination of review by Tribunal (1)... (2)... (3) In determining an application for the review of a reviewable decision, the Tribunal may decide: (a) to affirm the reviewable decision, or (b) to vary the reviewable decision, or (c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or (d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal. 43As we have pointed out, the Tribunal determined the application by setting aside the decision of the appellant and in substitution thereof a decision that the appellant restore the respondent carer's name on its Register. 44In oral submissions the appellant contended that the Tribunal below had no jurisdiction to make a decision in substitution of the decision that it set aside. In our view the Tribunal did have jurisdiction to make that order. The question is whether the order was appropriate in the circumstances. In our view it was not in light of the evidence before it. Our reasoning in this regard arises from the appellant's third jurisdictional argument based on futility. We have dealt with this in more detail below. 45The appellant contended, on the basis of the respondent carer's move to another local government area, her application before the Tribunal below was futile as the appellant could no longer authorise her, nor could it authorise her to provide family day-care services under the licence of another licensee. Accordingly, the appellant made an application before the Tribunal that the respondent carer's application should be dismissed as being frivolous, vexatious, or otherwise misconceived or lacking in substance (see subparagraph 73(5)(g)(ii) of the ADT Act. At [11] the Tribunal dismissed the appellant's application. In its reasons for dismissing the appellant's application, the Tribunal noted the respondent carer's statutory right to seek review. It also noted that the decision of the appellant to remove her name from its Register on the basis of a finding of risk of harm to children if she were to continue to be authorised to provide family day-care services at her home, was a 'serious matter' and affected her ability to provide such services in the future: see at paragraph [21] of the Tribunal's decision. 46In a recent decision, the President considered a similar argument of futility in regard to an application for review of a decision that ceased to be operative as a result of an effluxion of time: see AVS Group Australia Pty Limited & Tony Sleiman v Commissioner of Police, NSW Police Force (Respondent's Application) [2012] NSWADTAP 24. In that case the decision for which the appellant sought review was a decision to cancel the appellant's security licence. The Tribunal at first instance affirmed the decision of the appellant: see AVS Group Australia Pty Limited v Commissioner of Police, NSW Police Force [2012] NSWADT 1. The appellant appealed the decision of the Tribunal. On appeal, the Commissioner argued that the appeal should be dismissed as the appellant's licence, the subject of the appeal had expired. The President, dismissed the Commissioner's application and at paragraph [22], after considering the relevant authorities, His Honour said: that the mere fact of the entitlement, licence or authority, the subject of the reviewable decision had ceased to be operative by effluxion of time did not, of itself, mean that the tribunal was no longer competent to review that decision. His Honour then went on to say the following: 22. In my view the following propositions emerge from these authorities: (i) The mere fact that the entitlement, licence or authority that was the subject of the reviewable decision has ceased to be operative by effluxion of time does not, of itself, mean that a review tribunal is no longer competent to deal with the review application. (ii) The reviewable decision may still be reviewed with a view to deciding whether it was the correct and preferable decision in the circumstances. In the case of this Tribunal, see the ADT Act, s 63(1) and (2), which provide: 63 Determination of review by Tribunal (1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision. (iii) The question of what order may be appropriate to give effect to the Tribunal's decision in the circumstances where the underlying entitlement has ceased to be operative is a separate matter. If the Tribunal is of the view that the administrator did not make the correct and preferable decision in the circumstances, it could, for example, make an order setting aside the decision. In that regard, s 63(3) provides: ... Section 66 provides: 66 Effect of a review decision (1) A decision determining an application for a review of a reviewable decision takes effect on the date on which it is given or such later date as may be specified in the decision. (2) If any such decision varies, or is made in substitution for, an administrator's decision, the decision of the Tribunal is taken: (a) to be the decision of the administrator (other than for the purposes of a review under this Chapter), and (b) to have had effect as the decision of the administrator on and from the date of the administrator's actual decision, unless the Tribunal orders otherwise. (iv) A proceeding may lose the character of a live dispute as it progresses through the tiers of the dispute resolution system. There may be no utility in the system continuing to deal with the dispute, for example because any order would have no practical effect or the review applicant no longer has a legitimate interest in the outcome of the application. (v) Care should be taken once proceedings have been properly commenced not to address these questions by reference to standing requirements expressed as preconditions to commencement. 47In our view the same principles applied in the application that was before the Tribunal below and we can see no error in law in the Tribunal rejecting the appellant's argument of lack of jurisdiction on the grounds of futility. However, we do accept, on the basis of the uncontested evidence before the Tribunal below, there was no utility in the order that the appellant restore the respondent carer's name on its Register as her name would have been removed in any event on the basis of her move outside the appellant's local government area and the fact that she was not seeking to be authorised to provide family day-care services under the appellant's licence. The essence of her application was to seek review of the basis on which the appellant had made its decision to remove her name from its Register. An order setting aside that decision, as we have said, does not operate to set aside the findings of JIRT as described in its letter to the appellant. (b) Failure to direct itself, or apply the law (grounds 5, 6, 7 and 10) 48The appellant contended that the Tribunal erred in failing to properly direct itself as to the applicable law regarding the assessment of risk to children, the standard and onus of proof and the matters for determination. Some of the issues raised by the appellant in regard to the findings of the Tribunal are not errors of law and go to the merits of the findings of the Tribunal. We have not considered these in the context of the appellant's arguments on errors of law. 49In regard to the principles of assessment of risk, the Tribunal relied on a decision of the High Court: see paragraph [75] of the Tribunal's decision. The decision, M v M (1988) 166 CLR 69, concerned a custody dispute between parents, where one parent was accused of having perpetrated a sexual assault. The appellant contended that it was of no relevance to the matters in issue before the Tribunal. 50In our view, the appellant's application is misconceived. In, Minister for Community Services v CE (No 2) [2002] NSWADTAP 1, at [12], the Appeal Panel held that the decision in M v M was 'instructive' in regard to the issue of assessment of risk where allegations of abuse are made against a carer authorised under the Care and Protection Act: see also Minister for Community Services v CE (No 1) [2002] NSWADTAP 7, at [25] and [26]. In the latter decision, at [25] and [26], the Appeal Panel said, applying the principles set out in M v M at pages 75-76: '25.... [It] is not essential to find that an allegation of abuse has been made out (applying the civil standard as formulated in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362. The question for the Department, as we see it, was whether removal of the child would avoid exposing the child to an unacceptable risk of abuse. 26. The Tribunal decision in this case, as we read it, appears to conclude that the key allegations of abuse were in fact made out to the Briginshaw standard. In these circumstances, the observations in M v M we consider is applicable ('In all but the most extraordinary cases, that finding will have a decisive impact on the order made respecting custody and access). While that was a case of an inter-parental contest of custody, we consider that similar considerations apply where the contest arises between the State as guardian and foster parents. In our view, as explained in our decision on the merits, this is the central question to be addressed in a case of child protection of the present kind.'' 51On appeal, the Court of Appeal did not criticise this approach of the Appeal Panel: see YG & GG v Minister for Community Services [2002] NSWCA 247. At [38] the Court accepted the view of the Appeal Panel that it was necessary for the tribunal at first instance, in determining the correct and preferred decision, whether it was satisfied, to the Briginshaw standard, if the alleged events had occurred, and if not, what was the nature and magnitude of risk of abuse arising from the conflicting evidence as to what happened. As this decision makes clear, even where a positive finding as to the alleged events cannot be made, the nature and magnitude of risk still needs to be assessed having regard to all the circumstances before the tribunal. 52In the application before the Tribunal below, it was required to determine the same issues that were before the Tribunal in CE and in doing so it did not err in applying the principles set out in M v M. It might have expressed these principles more clearly and their application to the issues before it: see Warsow v Warsow [2010] FamCA 591 (14 July 2010), at [106]. However, this does not amount to an error of law. Nor did the Tribunal incorrectly apply the Briginshaw standard of proof, which was only relevant to the question as to whether the alleged incident had occurred. There was clearly insufficient material before the Tribunal to make a positive finding, on the balance of probabilities, in respect of the alleged incident. At the same time, contrary to what is suggested in the appellant's submission, nor did the Tribunal make a positive finding that the alleged incident did not occur. 53At paragraph [88], in accordance with the principles of M v M, being unable to make a positive finding in regard to the alleged incident, the Tribunal went on to consider whether, on the evidence, in the circumstances, there was a likelihood of risk of harm to young children if the respondent carer were to continue to be authorised to provide home day-care services for young children. That likelihood of risk is to be assessed objectively in light of all the relevant circumstances and the relevant legislative framework. That risk, as indicated by the Tribunal, is whether, in the circumstances, the risk is an 'unacceptable' one. As explained in Warsow, at [110], 'Whether or not there exists an unacceptable risk involves an evaluation of the nature and degree of risk and whether, with or without safeguards, it is acceptable.' In Warsow the Court went on to say that 'a constellation of factors' may comprise an unacceptable risk 'even though none or only some are proved' on the balance of probabilities. 54In regard to the issue of onus of proof, the appellant argued that it was for the respondent carer to prove that the JIRT decision was wrong and therefore the decision of the appellant was wrong. Again, for the reasons we have already given, the issue before the Tribunal was not whether the decision of JIRT was wrong. The issue for determination was whether, on the material before the Tribunal, the decision of the appellant was the correct and preferred decision, without any disposition to that decision being correct or incorrect. That is, there was no 'onus' on the appellant or the respondent carer to 'prove', to a civil standard of proof, that the appellant's decision was correct or incorrect: see Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 46 FLR 409; 2 ALD 60. Accordingly, this ground of appeal is also misconceived. We also find that there is no basis to the appellant's assertion that the Tribunal placed an onus on the appellant. The fact that the Tribunal set aside the decision of the appellant did not mean it had done so on the basis of the appellant having failed to discharge an onus that its decision was correct. We are satisfied, on reading the Tribunal's reasons for decision there is no basis to find that the Tribunal erred in this regard. (c) Failure to give any or adequate reasons (ground 3 and 4) 55The appellant argued that the Tribunal failed to give any, or adequate reasons for rejecting the unchallenged evidence of the appellant's witnesses and preferring the evidence of the respondent carer, whose evidence was comprehensively refuted by the appellant. 56There is no dispute that the Tribunal is required to give reasons for its decisions: see section 89 of the ADT Act and Mouwad v Commissioner of Police, NSW Police Force (GD) [2011] NSWADTAP 50 at [18]. 57In Mouwad, at [21] the Appeal Panel followed the principles in underlying the duty to give reasons, as those summarised by Tobias JA (Ipp JA, Hoeben J agreeing) in Young v Cesta-Incani and Anor [2007] NSWCA 229 (4 September 2007) at [56] to [58]. These were in the following terms: 56 Essentially, a judge at first instance must engage with the case presented by each of the parties: Whalen v Kogarah Municipal Council [2007] NSWCA 5 at [40]; The Nominal Defendant v Kostic [2007] NSWCA 14 at [56]. As Meagher JA said in Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 443: "There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it ... Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to." 57 Further, as Ipp JA pointed out in Kostic at [59], "...Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his or her findings as to how he or she comes to accept one over the other." 58 As Hayne J also observed in Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 at 1835 [130]; [2005] HCA 57, the failure of a trial judge to examine all of the material relevant to a particular issue is an error in the process of fact finding. 58In our view the appellant's argument is also misconceived on this ground. The fact that the appellant's evidence was not challenged by cross-examination did not mean that the Tribunal was required to accept what was contained therein. The role of the Tribunal, as we have said, was to consider all the material before it. It is evident from its reasons for decision that it did consider all the material before it: see paragraphs [23] to [48] (which deals with the respondent carer's evidence) and paragraphs [49] to [56] (which deals with the appellant's evidence). At paragraph [55] of its reasons for decision, the Tribunal noted an inconsistency in the evidence of MG in regard to what her son had told her about the alleged incident. It said the following: 'It is noteworthy that this version of events relating to the critical incident is not consistent with the version of events purported by Ms Avero in her notes of the meeting she had with MG on 25th June 2010, nor is it consistent with a version that the applicants stated F's father had put to her when he rang her on the evening of 24th June 2010.' 59In our view, it was open to the Tribunal to make the findings it did and it provided sufficient reasons for reaching the conclusion it did at paragraph [91] that the accounts given by the parents of F were inconsistent. That inconsistency having arisen from their own evidence as explained by the Tribunal. (d) Took into account irrelevant matters and failed to take into account relevant matters (ground 8 and 9) 60In our view the various matters raised by the appellant in regard to the Tribunal having taken into account irrelevant matters and failed to take into account relevant matters are issues that go to the merits of the findings made by the Tribunal. For example, evidence about the absence of previous complaints about the respondent carer and the fact that the appellant's evidence was unchallenged. 61We agree with the appellant that factors such as financial hardship and stigma were not matters relevant to the risk of harm issue that was before the Tribunal for determination. As we have indicated, this is a protective jurisdiction, where the safety, welfare and well-being of the child or children is paramount. 62However, we do not find that the Tribunal took these matters into account when making its determination. These matters were mentioned in paragraph [80] of the Tribunal's decision. In our view on a proper reading of this paragraph and the decision as a whole, they were not raised in the context of the Tribunal's determination of risk of harm in the matter before it. They were raised in the general context of 'injustice', if 'mere allegations' were 'sufficient evidence of "an unacceptable risk"'. 63Accordingly, we do not find that the Tribunal erred in taking into account irrelevant considerations, or failed to take into account relevant considerations in making its determination as to risk of harm and whether the decision of the appellant was the correct and preferred decision. (e) Made findings and reached conclusions in the absence of submissions and/or evidence from JIRT 64The appellant contended that the Tribunal erred by not hearing from JIRT or joining it as a party to the proceedings under subsection 67(4) of the ADT Act. That subsection provides: 67(4) The Tribunal may, by order, make a person who is not a party to proceedings (other than proceedings on an internal appeal) a party to the proceedings if the Tribunal considers that the person ought to have been joined as a party or is a person whose joinder is necessary to the determination of all matters in dispute in the proceedings. 65For the reasons we have already stated, there is no merit in this ground of appeal. The Tribunal was not reviewing the decision of JIRT so there was no basis on which to join it as a party. Furthermore, what is clear from the decision, at the request of the respondent carer, the Tribunal issued a summons ordering JIRT to produce documents relevant to its enquiries and findings as set out in its letter to the appellant; see at paragraph [56]. No documents were provided: see paragraphs [57] to [64]. In our view, this failure to provide documents did not invoke the discretion vested in the Tribunal under subsection 67(4) to join JIRT as a party to the proceedings. On the contrary, it would have been inappropriate to do so. Leave to appeal on the merits 66The Tribunal's power to grant leave to extend an appeal to the merits is a discretionary one. In O'Sullivan v Medical Council of New South Wales [2010] NSWADTAP 64 at [24] the Appeal Panel set out the principles that apply to the exercise of that discretion as follows: 24 Legal principles for granting leave. It is not necessary for the Appeal Panel to first identify an error of law before granting leave for an appeal to be extended to the merits of the Tribunal's decision: Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456. The onus of proof lies on the party applying for leave and the standard of proof is on the balance of probabilities: World Best Holdings Ltd v Sarker & Anor [2004] NSWSC 935 at [25] per Sully J. The discretion is open and unfettered but must be exercised in a fair and just manner having regard to the purpose of the relevant legislation: Jones v Ekermawi [2009] NSWSC 143 at [13]. Certain inferences can be drawn from the fact that leave is required. They include that the need for leave is a 'control filter' designed, among other things, to protect respondents from the cost of a full hearing of appeals which should not properly be entertained: World Best Holdings Ltd v Sarker & Anor, per Sully J at [25]. Circumstances which may justify leave being granted include where the Tribunal has gone about its fact finding process in such an unfair or unorthodox manner that it is likely to produce an unfair result: K v K [2000] NSWSC 1052 at [10] to [15]. However, "merely to suggest that there is a bona fide challenge to a decision of fact is not enough to require the Appeal Panel to grant leave to appeal.": Abdul-Karim v the Council of the New South Wales Bar Association [2005] NSWCA 93 at [34] per Mason P (Ipp JA and Hunt AJA agreeing). 67The appellant's contentions in regard to extending the appeal to the merits arise from the same questions that were raised in the abovementioned questions of law. That is, they arise from alleged errors of factual findings by the Tribunal in regard to the alleged incident and the question of risk of harm. 68In our view, it is difficult to see how the findings made by the Tribunal were not open to it on the material that was before it. This alone is a strong factor in favour of the Appeal Panel not exercising its discretion to grant leave to the appellant to appeal the merits. The fact that that there is now a new legislative regime and the fact that the respondent carer does not seek to provide family day-care services under the appellant's licence but intends to do so pursuant to the licence of another licence holder, are also factors which weigh strongly towards the Appeal Panel not exercising that discretion in favour of the appellant's application. Any application the respondent carer might make to provide family day-care services in her new home will in any event be assessed a fresh having regard to the applicable law and the relevant facts at that time. Conclusion and orders 69For the reasons set out above, the appellant has failed to establish any error of law or that the Appeal Panel's discretion should be exercised to grant leave on the merits. 70However, as explained in paragraph [47] above, in light of the respondent carer's move from the appellant's local government area and her desire to provide family day-care services under the licence of another licensee of such services, there is no utility in the Tribunal's order that in substitution of the appellant's decision, a decision that the respondent carer's name be restored to the appellant's Register. Accordingly we make the following orders: Orders 71The appeal allowed in part. 72Confirm order setting aside appellant's decision of 22 July 2010 to remove the respondent carer's name from its Family Day-Care Register. 73Quash order that the respondent carer's name be restored to the appellant's Family Day-Care Register. 74No order as to costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 October 2012