Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BDL v Children's Guardian [2015] NSWCATAD 268 Hearing dates: 7 December 2015 Decision date: 22 December 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: S Higgins, Principal Member Decision: 1. On or before 15 January 2016 the applicant to file and serve: (a) any further material on which he relies; and (b) a letter confirming that he requests the matter to be determined on the papers, pursuant to section 50 of the Civil and Administrative Tribunal Act 2013; or (c) a letter advising he wishes the matter to proceed to a hearing. 2. In he event the applicant files and serves any further material, on or before 29 January 2016 the respondent to file and serve any further material in reply. 3. In the event the applicant advises the Tribunal and the respondent, in accordance with order 1(c) above, that he wishes the matter to proceed to a hearing, the matter is listed for directions on 21 January 2016 at 2.30 pm for the purpose of setting a hearing date in early February 2016, 4. In the event the applicant confirms, in accordance with order 1(b) above, his request that the matter is to be determined on the papers, pursuant to section 50 of the Civil and Administrative Tribunal Act 2013, the matter is to be so determined after 1 February 2016. Catchwords: Administrative review – procedure – applicant requested the matter be determined on the papers and that a hearing be dispensed with – application granted Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Child Protection (Working with Children) Act 2012 Category: Procedural and other rulings Parties: BDL (Applicant) Children's Guardian (Respondent) Representation: Counsel: V Hartstein (Respondent) Solicitors: In Person (Applicant) Crown Solicitors Office (Respondent) File Number(s): 1410112 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the name of the applicant and the name of any child named in the material filed in these proceedings and the name of any other person that would identify the name of the applicant or said child is not to be published or broadcasted without the leave of the Tribunal. Judgment 1. The applicant, BDL, has made an application seeking review of a decision of the respondent to refuse his application for a working with children check clearance under subsection 18(2) of the Child Protection (Working with Children) Act 2012. The applicant's application for review was lodged on 14 March 2014. It has had a protracted history the reasons for which are explained below. 2. In accordance with the Tribunal's Procedural Direction on Publication, Anonymisation and Suppression, on 16 July 2015, I made an order under subsection 64(1)(a) of the Civil and Administrative Tribunal Act 2013, that the name of the applicant and the name of any child named in the material filed in these proceedings and the name of any other person that would identify the name of the applicant or said child is not to be published or broadcasted without the leave of the Tribunal. 3. On 7 December 2015, when the application was before me on a re-instatement application under subsection 55(2) of the Civil and Administrative Tribunal Act 2013, counsel for the respondent indicated that there was no objection to the re-instatement of the applicant's application on the condition it was set down for hearing. The appellant contended a hearing was unnecessary and submitted the matter should be determined on the papers. 4. Section 50 of the Civil and Administrative Tribunal Act 2013 makes provision as to when a hearing is required. That section is in the following terms: 50 When hearings are required (1) A hearing is required for proceedings in the Tribunal except: (a) in proceedings for the granting of leave for an external or internal appeal, or (b) in connection with the use of any resolution processes in proceedings, or (c) if the Tribunal makes an order under this section dispensing with a hearing, or (d) in such other circumstances as may be prescribed by the procedural rules. (2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. (3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first: (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. (4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules. (5) This section does not prevent the Tribunal from holding a hearing even if it is not required. 1. The respondent did not consent to the hearing of the application being dispensed with. However, in the event the Tribunal were to dispense with a hearing, the respondent requested that it be provided with an opportunity to make further written submissions. 2. On 7 December 2015, I reserved my decision. 3. I have now considered the issue and for the reasons set out below I have found that in the circumstances of this matter the issues for determination can be adequately determined in the absence of the parties, subject to the applicant being given an opportunity to seek advice and file and serve any further material on which he relies. The nature of the proceedings 1. The appellant's application falls within the Tribunal's review jurisdiction: see Civil and Administrative Tribunal Act section 30, Administrative Decisions Review Act 1997 sections 7 and 9 and Child Protection (Working with Children) Act 2012 section 27. 2. The role of the Tribunal in these proceedings is to decide what the correct and preferable decision is having regard to the material before it, including any relevant factual material and any applicable written or unwritten law: Administrative Decisions Review Act 1997 subsection 63(1). That is, the Tribunal sits in the shoes of the respondent and determines the matter afresh as at the time of the hearing, or where an order has been made to dispense with a hearing as at that time. 3. The orders the Tribunal can make in determining a review application are set out in subsection 63(3) of the Administrative Decisions Review Act 1997. These are as follows: 63 Determination of administrative review by Tribunal … (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal 1. The relevant legislation for the purpose of determining the applicant's application is the Child Protection (Working with Children) Act 2012 (WWC Act), in particular sections 4, 27 and 30. 2. Section 4 of the WWC Act provides that "the safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act." That is, in deciding what the correct and preferable decision is the Tribunal must have regard to the safety, welfare and well-being of the children subject of the decision, as the paramount concern. 3. Section 27 of the WWC Act relevantly provides: "27 Applications to Civil and Administrative Tribunal for administrative reviews of clearance decisions (1) A person who has been refused a working with children check clearance by the Children's Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person. (2) … (3) A person who is subject to an interim bar imposed by the Children's Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision, but only if the interim bar has been in force for more than 6 months. (4) An applicant must fully disclose to the Tribunal any matters relevant to the application. …" 1. Section 30 of the WWC Act relevantly provides: 30 Determination of applications and other matters (1) The Tribunal must consider the following in determining an application under this Part: (a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar, (b) the period of time since those offences or matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the offences or matters occurred, (d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim, (e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person, (f) whether the person knew, or could reasonably have known, that the victim was a child, (g) the person's present age, (h) the seriousness of the person's total criminal record and the conduct of the person since the offences occurred, (i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, (j) any information given by the applicant in, or in relation to, the application, (k) any other matters that the Children's Guardian considers necessary. 1. The matters which caused the respondent to refuse the applicant's application was a February 2003 workplace record of sustained allegations of sexual misconduct/grooming and a range of offences from 2001 that included common assault and contravene restrictions in an Apprehended Violence Order. I have not considered these matters for the purpose of this decision. I merely note them as being the matters which triggered the assessment requirement of the applicant, by the respondent, under s 15 of the WWC Act. 2. Section 14 of the WWC Act provides that a person is subject to an assessment requirement under that Act if any of the matters specified in Schedule 1 apply to that person. The applicant's February 2003 workplace record I note falls within cl 2 of Schedule 1. The other matters were taken into account by the respondent in undertaking the risk assessment under section 15. 3. The applicant had made his application for a clearance on 17 June 2013. On 4 September 2013, the respondent determined the applicant be subject to an interim bar under section 17 of the WWC Act. The bar prohibited the applicant from working in child related work, as defined in section 6 of the WWC Act, pending the determination of his application for a clearance. I note the applicant has at all times contended that he does not pose a risk to the safety of children and should be granted a working with children check clearance so that he can work in child related work. History of the proceedings before the Tribunal 1. As I have noted, the applicant lodged this application on 10 March 2014. He lodged it pursuant to subsection 27(3) of the WWC Act, as the interim bar determination had been in force for more than 6 months. 2. The applicant's application, together with a Stay Application, first came before me on 13 March 2014. I adjourned the hearing of the Stay application to 25 March 2014 and noted that the respondent had undertaken to make a final determination on the applicant's application for a clearance. 3. On 25 March 2014, I refused the applicant's application for a stay and made an order that the decision of the respondent (see subsection 6(5) of the Administrative Decisions Review Act) be remitted, pursuant to section 65 of the Administrative Decisions Review Act, for reconsideration. I also made an order that on or before 14 April 2014 the respondent was to file and serve her decision on reconsideration and that the matter was adjourned for further directions on 24 April 2014. 4. The applicant appeared by telephone at both directions hearing. He had provided a telephone contact number on his application for review and I called him on that number on both occasions. 5. On 27 March 2014, the Tribunal was informed that the NSW Supreme Court had handed down a decision some days earlier staying proceedings instituted by the applicant within New South Wales. That decision was made under the subsection 8(7)(a) of the Vexatious Proceedings Act 2008. 6. On 11 April 2014, the Registrar of the Administrative and Equal Opportunity Division (the Registrar) wrote to the applicant and the respondent noting the decision of the Supreme Court and the orders that were made. The Registrar advised that by reason of the orders the applicant's proceedings before the Tribunal were stayed and the directions hearing of 24 April 2014 had been vacated. 7. On 17 June 2015, the applicant wrote to the Tribunal President, the Hon. Justice Wright SC, stating that he had not received any correspondence from the Tribunal since March 2014 when the Registrar wrote to him to advise him of the 13 March 2014 hearing date. He requested the matter be determined as a matter of urgency as he required an "enabling order" to work. He noted he had not been convicted in any court of law of a child related offence and therefore should not be prevented from working in child related work. 8. The Registrar wrote to the applicant the same day attaching a copy of the letter of 11 April 2014. 9. The applicant again wrote to the Tribunal President on 30 June 2015. In that letter he stated that he had not received the Registrar's letter of 11 April 2014. He also advised that, on 13 March 2015, the Court of Appeal overturned the orders made by the Supreme Court under subsection 8(7)(a) of the Vexatious Proceedings Act 2008. The applicant requested that his application for review should be determined as a matter of urgency. 10. The matter next came before me, on 16 July 2015, at a directions hearing. The applicant appeared by telephone and by consent I made the following standard orders: 1. The respondent to file and serve the section 58 documents by 24 July 2015. 2. The respondent to file and serve a statement of reasons by 30 July 2015. 3. The applicant to file and serve all evidence by 14 July 2015. 4. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the name of the applicant and the name of any child named in the material filed in these proceedings and the name of any other person that would identify the name of the applicant or said child is not to be published or broadcasted without the leave of the Tribunal. 5. The matter is adjourned for further directions on 28 August 2015 at 9.30 am. 1. In compliance with these orders, on 24 July 2015, the respondent filed the section 58 documents. A Statement of Reasons was filed on 29 July 2015. I note the applicant states that he was not served with the respondent's material within the time ordered. 2. The applicant also filed an affidavit/submissions on 14 August 2015, as directed. 3. On 28 August 2015, Ms K Kless solicitor appeared for the respondent. However, there was no appearance by or for the applicant. As he had previously appeared by telephone I telephoned the number he had provided three times between 10 and 10.30 am. There was no answer. On this day I made the following orders: 1. Respondent to file any additional documents by 11 September 2015. 2. Applicant to file and serve any further evidence by 25 September 2015. 3. The matter is adjourned for further directions (for the purpose of setting a hearing date in October or late November) on 2 October 2015 at 10 am. 4. Registry to write to the applicant and inform him of the orders made today including the adjourned directions date. 1. The Registrar wrote to the applicant on 28 August 2015 and informed him of the orders that had been made that day. The letter was sent to the Post Office Box nominated by the applicant in his application. This was the address that all previous correspondence had been sent. The applicant has not provided a street address. 2. On 30 August 2015, the applicant sent a letter addressed to the President, by email, to the President's Associate. In his letter the applicant requested that the determination of his application and the granting of an "enabling order" as stipulated in his affidavit. 3. On 2 October 2015, at the adjourned directions hearing, Ms K Kless appeared on behalf of the respondent. There was no appearance by the applicant. I again telephoned him twice on the telephone number nominated by him. In the absence of an appearance I dismissed the applicant's application pursuant to s 55(1)(c) of the Civil and Administrative Tribunal Act 2013. The Registrar wrote to the applicant on the same day advising him of the orders that had been made and also informing him of his right to make a request for written reasons within 28 days of receipt of the letter, together with a right to appeal following receipt of the written reasons. 4. On 13 October 2015, the applicant wrote to the President advising that he had only that day been notified of the dismissal his application. He said he had been awaiting the President's determination "as per" his affidavit and was unaware of the 2 October directions hearing. He requested the President to urgently review the tribunal's decision and to "reside" over the matter. 5. The Registrar responded to the applicant's letter on 19 October 2015. In that letter the Registrar informed the applicant of his right to make an application under s 55(2) of the Civil and Administrative Tribunal Act 2013, for the Tribunal to consider to re-open his matter. The Registrar also advised that he would need to provide an explanation as to his non-attendance on 2 October 2015. He was informed that upon receipt of his explanation the matter would be listed for a short hearing to determine whether the matter will be re-opened or not. 6. On 21 October 2015, the applicant again wrote to the President requesting reasons for the decision made on 2 October 2015. A further request for written reasons was made by the applicant on 23 October 2015. 7. On 9 November 2015, the applicant wrote to the President requesting that his application be re-instated and the matter be determined in accordance with his affidavit. In the letter the applicant explained that he was unaware of the 2 October 2015 directions hearing as he never received the correspondence to that effect. He said he had been having ongoing problems with his mail which he had reported to the Commonwealth Ombudsman. 8. On 11 November 2015, the Registrar wrote to the parties. Attached to the letter was a copy of the transcript of my oral reasons for decision, given on 2 October 2015. The letter also informed the parties of orders I had made, in chambers, in regard to the applicant's application for re-instatement. These orders included directions for the filing and serving of evidence and submissions. The hearing of the applicant's application for re-instatement was listed for hearing on 7 December 2015. As I have noted, I made an order for the applicant's application to be re-instated as the applicant indicated the matter should be determined. The only issue was whether there should be a hearing. Consideration 1. As can be seen from the above, the applicant's application has a protracted history. Consistent with the guiding principles of the Tribunal it is in his interest and that of the respondent that the matter be finalised. The guiding principles of the Tribunal are set out in section 36 of the Civil and Administrative Tribunal Act which is in the following terms: "36 Guiding principle to be applied to practice and procedure (1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The Tribunal must seek to give effect to the guiding principle when it: (a) exercises any power given to it by this Act or the procedural rules, or (b) interprets any provision of this Act or the procedural rules. (3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal: (a) a party to proceedings in the Tribunal, (b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal. (4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings. (5) However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions." 1. As I have noted the issue for determination is what is the correct and preferable decision having regard to the relevant factual material before the Tribunal and the applicable law, including sections 4, 27 and 30 of the WWC Act. 2. The respondent has filed and served the material on which she relies together with her reasons for decision. The applicant has received a copy of these and while he asserts he did not receive them on or before the day ordered by the Tribunal, he does have them and has had them for some time. This material identifies the matters of concern to the respondent and the material on which the respondent relies in making the decision that was made. This is material of which the applicant has previous knowledge. 3. The applicant has also filed and served the material on which he relies. The material primarily consists of submissions or contentions the applicant makes as to why he should be granted a clearance. 4. In my view, having regard to the abovementioned guiding principles, the nature of these proceedings, the material filed and the applicants request that a hearing be dispensed with I am satisfied it is appropriate to make the order sought so that the matter can be finalised. However, as the applicant is unrepresented he should be given an opportunity to: (a) seek advice and consider his request in light of the nature of the proceedings as set out in these reasons for decision and (b) file and serve any further evidence or submissions on which he relies. If he does file and serve any further material the respondent should be given an opportunity to file and serve any material in reply. 5. Accordingly, I make the following orders: 1. On or before 15 January 2016 the applicant to file and serve: 1. any further material on which he relies; and 2. a letter confirming that he requests the matter to be determined on the papers, pursuant to section 50 of the Civil and Administrative Tribunal Act 2013, or 3. a letter advising that he wishes the matter to proceed to a hearing. 1. In the event the applicant files and serves any further material, on or before 29 January 2016 the respondent to file and serve any further material in reply. 2. In the event the applicant advises the Tribunal and the respondent, in accordance with order (1)(c) above, that he wishes the matter to proceed to a hearing, the matter is listed for directions on 21 January 2016 at 2.30pm for the purpose of setting a hearing date in early February 2016. 3. In the event the applicant confirms, in accordance with order 1(b) above, his request that the matter is to be determined on the papers, pursuant to section 50 of the Civil and Administrative Tribunal Act 2013, the matter is to be so determined after 1 February 2016. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 22 December 2015