Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CFT v Children's Guardian [2016] NSWCATAD 92 Hearing dates: 28 April 2016 Date of orders: 28 April 2016 Decision date: 28 April 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: M Anderson, Senior Member Prof P Foreman, General Member Decision: 1. The application for an adjournment of the hearing is granted. 2. The application filed 30 October 2015 is set down for hearing on 9 June 2016. Catchwords: ADMINISTRATIVE LAW- adjournment application- section 28 Child Protection (Working with Children) Act 2012 (NSW) enabling application- whether adjournment of Tribunal hearing ought to be ordered to give a party proper opportunity of adequately presenting case- discretionary considerations- adjournment granted. Legislation Cited: Child Protection (Working with Children) Act 2012 (NSW) Child Protection Legislation Amendment Act 2015 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil Procedure Act 2005 (NSW) Crimes (Administration of Sentences) Act 1999 (NSW) Cases Cited: ANZ v Mio Amico Pty Ltd [2013] NSWSC 716 Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Hamod v State of New South Wales [2011] NSWCA 375 Italiano v Carbone & Ors [2005] NSWCA 177 Category: Procedural and other rulings Parties: CFT (Applicant) Children's Guardian (Respondent) Representation: Solicitors: CFT (Applicant in person) Crown Solicitor's Office (Respondent) File Number(s): 1510682 Publication restriction: Section 64(1) Civil and Administrative Tribunal Act 2013- restriction on publication of information that will identify the applicant, any children or victims, nonprofessional witnesses, or evidence given and received in the Tribunal or in relation to the proceedings which is likely to identify those persons without leave of the Tribunal. REASONS FOR DECISION 1. On the hearing date for this matter the respondent moved on a Motion filed 27 April 2016, which the Tribunal marked as Exhibit A on the application, to adjourn the hearing date of 28 April 2016. This application was supported by an affidavit which was marked Exhibit B, sworn by Mr Boyd, Solicitor. An emailed letter had been sent to the applicant and the Registrar of the Tribunal informing both of the asserted necessity on the part of the respondent to seek an adjournment of the hearing listed on 28 April 2016 for reasons which will be adverted to later in this judgment. This letter was Annexure A to the affidavit of Mr Boyd. An email from the applicant to Mr Boyd on 26 April 2016 was received on the application and marked Exhibit C. 2. The application of the respondent for an adjournment was opposed by the applicant. 3. The currently constituted Tribunal heard the extensive submissions from the applicant and the respondent on 28 April 2016. After a short adjournment for deliberation the Tribunal determined to adjourn the matter as requested by the respondent and opposed by the applicant, on the basis that the matter will be finally heard on 9 June 2016. The Tribunal announced the determination of the application on 28 April 2016 and reserved delivery of reasons in support of that determination. These are the reasons for that determination. 4. The Tribunal has a wide discretionary power to grant an adjournment by reason of section 51 of the Civil and Administrative Tribunal Act 2013 (NSW), and is required by section 36 of the same Act, in matters of practice and procedure to conduct proceedings with the following guiding principle: 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. The affidavit of Mr Boyd (Exhibit B) sets out that on 26 April 2016 Counsel who had been briefed in the matter was no longer able to appear because of an unforeseen conflicting Court commitment in Newcastle which would run into the scheduled hearing date for the enabling order application on 28 April 2016. This particular Counsel had drafted submissions on behalf of the respondent which were filed on 23 December 2015 and had clearly held the brief for a significant period of time. Mr Boyd then attempted to brief other counsel who are experienced in these enabling order applications and previously briefed by the Crown Solicitor on behalf of the Children's Guardian. None of the contacted counsel was available on 28 April 2016. Mr Boyd was instructed by the Children's Guardian to make an application for an adjournment. Immediately, Mr Boyd sent a facsimile transmission requesting the adjournment to the Registrar and emailed the same letter to the applicant. The Children's Guardian wishes to retain the same counsel who drafted the submissions and supplementary submissions to appear on the hearing. The applicant is representing himself. 2. It is an agreed fact that that the applicant was convicted and sentenced in relation to an offence specified in schedule 2 of the Child Protection (Working with Children) Act. The offence is murder. The murder victim died in 1996. The applicant was found guilty of that offence, with his co-accused after a trial, in 1999. The applicant was sentenced to imprisonment for a period of 21 years and 6 months being a minimum term of 16 years and an additional term of 5 years and 6 months. The applicant was released on parole in the middle of 2015. The applicant has been in prison for about 16 years and in the community on parole for less than one year. 3. This is an application for an enabling order pursuant to section 28 of the Child Protection (Working with Children) Act 2012 (NSW). The application was made to the Children's Guardian on 6 September 2015 prior to the date of commencement of the amendments made by the Child Protection Legislation Amendment Act 2015 (NSW). Murder was added to schedule 2 of the Child Protection (Working with Children) Act on 29 October 2014. The paramount consideration set out in section 4 of the Child Protection (Working with Children) Act refers in particular to protecting children from "child abuse". The section is as follows: "Safety, welfare and well-being of children to be paramount consideration 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." 1. The applicant, unless the contrary is shown, is presumed to pose a risk to the safety of children because of section 28(7) of the Child Protection (Working with Children) Act. 2. In Hamod v State of New South Wales [2011] NSWCA 375, the Court of Appeal reviewed the principles to be considered in deciding whether an adjournment should be granted. The Court of Appeal referred to Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 and stated (at [139] - [145]): "139 The considerations relevant to the determination of interlocutory applications were recently considered by the High Court in Aon Risk Services Australia Ltd v Australian National University. In Aon Risk Services Australia Ltd, the Court was dealing with the rules of court of the Supreme Court of the ACT. Those rules are relevantly similar to the [New South Wales] Civil Procedure Act, s 56 ff. Although the application in question in that case was an application to amend pleadings, the High Court addressed the concerns of case management more generally, noting the impact that substantial delay and wasted costs has on parties, the court and other litigants. Relevant to the application in this case are the comments of French CJ, at [5]: "[T]here is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system." 140 His Honour further stated, at [30]: "Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes." 141 A just resolution of proceedings remains the paramount purpose of the case management objectives articulated in the relevant procedural provisions of the civil procedure legislation: in particular see the Civil Procedure Act, s 56. What constitutes a "just resolution" is to be understood in light of the purposes and objectives stated in the statutory provisions. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. However, these terms are relative and parties should be given an appropriate opportunity to plead and argue their case. Nonetheless, there are limits to the extent that a party will be accommodated in the conduct of the litigation. In Aon Risk Services Australia Ltd, Gummow, Hayne, Crennan, Kiefel and Bell JJ, at [98], stated: "The Rule's reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs." 142 In his submissions to this Court, Mr Hamod made specific reference to these provisions, as well as to s 66. He submitted that his Honour was obliged to apply s 66, subject to s 56, and to then make his determination according to the dictates of justice as required by ss 57-58. Section 66 provides, relevantly, that the court may at any time, by order, adjourn proceedings. 143 There is nothing new in this provision. It merely confers upon the court a discretion to grant an adjournment. The court has always had that power, both in the exercise of its inherent jurisdiction and pursuant to the Supreme Court Act 1970. Nor is s 56 a new concept. Rather, it is the statutory embodiment of jurisprudence that had already gained prominence in the case law. Issues of delay, costs and inefficiency have led to active case management in the courts as a recognised feature of the administration of justice for at least the last two decades. 144 Mr Hamod also relied upon ss 57 and 58. Section 57 provides that in furthering the overriding purpose of a just, quick and cheap resolution of case, the court is required to manage cases having regard, inter alia, to " the just determination of the proceedings": s 57(a). Section 58 provides that in making any order or direction the court is to "seek to act" in accordance with the dictates of justice, including having regard to the "degree of injustice that would be suffered by the respective parties as a consequence of any order or direction." 145 These provisions have been the subject of frequent judicial comment: Tripple Take Pty Ltd v Clark Rubber Franchising Pty Ltd [2005] NSWSC 1169; Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2005] NSWSC 1339; Dennis v Australian Broadcasting Corporation [2008] NSWCA 37; Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230; Bi v Mourad [2010] NSWCA 17 at [47]; Richards v Cornford (No 3) [2010] NSWCA 134; McMahon v John Fairfax Publications Pty Ltd [2010] NSWCA 308. In McMahon v John Fairfax Publications Allsop P, at [26], referred to the case management provisions ss 56-60 as follows: "The operation of the Civil Procedure Act, ss 56-60 has brought about important changes to the conduct of civil litigation in this State. To a significant degree those provisions enshrined many of the developments in case management and the approach to litigation over the previous 20-30 years in this country. They now have statutory form. They are, however, a clear statutory watershed. That statutory form comprises the over-riding purpose: s 56, the fulfilment of which binds the Court (s 56(2)), the parties (s 56(3)) and legal advisers (s 56(4)). That over-riding purpose is the 'just, quick and cheap resolution of the real issues in the proceedings'."" 1. In ANZ v Mio Amico Pty Ltd [2013] NSWSC 716, Justice Davies also referred to the principles identified in the previous paragraph in Aon Risk Services Australia Ltd v Australian National University, and stated at [58] to [60] and [62] the following: "58 Principles discussed in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 should be applied analogously to applications for adjournment. In that regard it is not only the interests of the parties to the instant proceedings which ought to be considered. An adjournment necessitating a further appointment of a hearing date will inevitably delay other parties from obtaining a hearing. It is partly to that end that s 57 is directed. 59 Further, the notion that amendments and adjournments can simply be met by an appropriate costs order is no longer an acceptable approach: Aon at [99] - [101]. In any event, there is reasonably compelling evidence in the present case that the Defendants would not be able to meet any costs order made against them on the basis that an adjournment was granted. 60 The general rule is that when a case is brought on for trial by the proper process the Plaintiff is entitled to have it heard and determined: Short v Short [1960] 1 WLR 833 at 849; Watson v Watson (1968) 70 SR (NSW) 203 at 206. ... 62 An adjournment will not normally be granted simply because there has been a late withdrawal of legal representatives, especially where the withdrawal relates to a fee dispute: Squire v Rogers [1979] FCA 48; (1979) 27 ALR 330 at 333, 337-338; or where there is a late retaining of legal representatives even for the reason of an inability to pay for them earlier: Dawson v Deputy Commissioner of Taxation (1984) 56 ALR 367 at 368-370; Kingsway Group at [11]." 1. The objects of the Act are set out in section 3 which provides: "Object of Act The object of this Act is to protect children: (a) by not permitting certain persons to engage in child-related work, and (b) by requiring persons engaged in child-related work to have working with children check clearances." 1. The Administrative and Equal Opportunity Division ("AEOD") of the Tribunal has its practice and procedure prescribed by reason of Schedule 3 of the Civil and Administrative Tribunal Act. Relevantly, a party to proceedings in this division is entitled to be represented by a lawyer without requiring leave of the Tribunal and there are no costs awarded in proceedings under the Act. A party aggrieved by a decision made under the Act in AEOD may appeal directly to the Supreme Court on a question of law: see sections 16, 17 and Schedule 3, clauses 9, 15, and 17 of the Civil and Administrative Tribunal Act. 2. The Tribunal is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: sections 38, and 67 of the Civil and Administrative Tribunal Act. 3. Procedural fairness and other aspects of natural justice, of course, are to apply to these proceedings and the Tribunal has a discretion to act on material which is rationally probative, but must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balancio (1987) 8 NSWLR 436. 4. The applicant acknowledges in his submissions that the jurisdiction of the Tribunal is protective and not punitive. The applicant relies upon that principle in support of his application for an enabling order. It is anticipated that the applicant will argue that he has already been punished for his offence, and the failure to obtain an enabling order would be further punishment. 5. The email from the applicant to the respondent's solicitor, Exhibit C dated 26 April 2016, objected to the service of the supplementary submissions of the respondent because they were filed on 22 April 2016 and should have been filed 8 days earlier on 14 April 2016. The applicant objects to those submissions because of that time difference. The applicant also objects to those submissions being relied upon because he has not had time to deal with them. An adjournment would permit the applicant more time to deal with those submissions and would not disadvantage him in relation to meeting those submissions. 6. The applicant objected to the adjournment primarily on the basis that it would disadvantage him and incur significant inconvenience to him because he would have to take time off work. The applicant started employment on a casual basis the Thursday previous to the application. The applicant will lose approximately $172.88 (gross) by having to take time off work, and because he is a casual employee, may even lose his job. The applicant was informed that the Tribunal does not have the power to award costs in these matters. Accordingly, it is a matter between the parties to determine whether the applicant is entitled to any compensation for an adjournment not of the applicant's making. 7. The applicant's current employment at 28 April 2016 does not rely upon the grant of a working with children check clearance. The applicant also stated in his submissions that he has difficulty retaining employment. When his employers find out that he has served time for murder, according to the applicant in his oral submissions, they are reluctant to continue to employ him and terminate his services. 8. Since the applicant wishes to utilise a working with children check clearance to further his employment prospects, and the applicant may not have a further opportunity to pursue this type of application due to the amendments to the Act, it is important this application is presented to its best advantage. Some further preparation time will assist his presentation of his case. 9. The applicant adopted cogent and forceful submissions that it was contrary to case management principles to adjourn the proceedings when the Children's Guardian had been in default of the Tribunal's directions concerning written submissions, and to summarise his other submissions the matter should be determined quickly and cheaply, in a just manner. The applicant also submitted that it was not in the public interest for the matter to be delayed. The applicant submitted that it was "unjust" to him for the application for an adjournment to be granted. 10. The applicant identified that one of his arguments for the grant of an enabling order relies upon the fact that the parole authority granted parole by reference to section 135 of the Crimes (Administration of Sentences) Act 1999 (NSW) which he submits contains similar considerations to those which the Tribunal is required to consider under section 30 of the Act. Specifically, the applicant submits that an inference to be drawn from the decision of the parole authority is that he is unlikely to reoffend. That argument will be a matter which will interest the Tribunal and the applicant has had a rehearsal of that argument on this application. 11. In Italiano v Carbone & Ors [2005] NSWCA 177, Justice Einstein with whom Spigelman CJ agreed on this issue, stated at [175] and [176]: 175 The question which arises is as to whether an adjournment of the hearing ought to have been ordered in the particular circumstances which obtained, it being clear that "a refusal to grant an adjournment can constitute a failure to give a party...the opportunity of adequately presenting his case", Sullivan v Department of Transport (1978) 20 ALR 323 per Deane J; cf Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40] cited by Basten JA. 176 Again one is thrown back to examining the extent to which the measure of natural justice that the Act requires to be given was complied with: cf Brodyn Pty Ltd t/a Time Cost and Quality v Davenport [2004] NSWCA 394 per Hodgson JA (at [54]). 1. The Children's Guardian seeks an adjournment in order to adequately present a case in response to the applicant's case for an enabling order. It would not be just nor in the public interest to insist upon the matter proceeding in the absence of adequate representation for one of the parties. The circumstances in which the Children's Guardian is unrepresented by counsel of its choice is not due to a late withdrawal of counsel due to a fee dispute, nor for the late retaining of legal counsel since counsel have been briefed from an early stage in these proceedings. Parties in applications of this type in the Tribunal are entitled to legal representation due to the provisions of the Act: see sections 16, 17 and Schedule 3, clauses 9, 15, and 17 of the Civil and Administrative Tribunal Act. 2. The applicant intends to rely upon a psychological evaluation which was filed in the Tribunal on 11 February 2016. The psychologist will be required for cross-examination by the respondent. It is the Tribunal's understanding that the respondent will arrange for the psychologist to give evidence and be cross-examined. There will be no disadvantage to the applicant by the grant of an adjournment in relation to this aspect of his application. 3. As previously referred to in this judgment the adjournment was granted. The fact that, according to the enquiries made by Mr Boyd, the psychologist giving evidence on behalf the applicant is available on the adjourned date of 9 June 2016 was a relevant matter in determining whether the matter should be adjourned to that date. 4. The Tribunal has chosen the date of 9 June 2016 because another matter which was set for that date was vacated a short time prior to the adjournment application in this matter, and it is a date convenient to the psychologist and counsel for the respondent. 5. The paramount consideration under the Act is the safety, welfare and well-being of children and, in particular, protecting them from child abuse. Due to the nature of the applicants offence the legislature has deemed that he is a risk to children unless the contrary is proven by him. The Children's Guardian is the contradictor and has the responsibility to present its case adequately in order to protect the public interest as identified in the objects of the legislation. 6. In summary, the Tribunal is satisfied of the following matters in the exercise of its wide discretion pursuant to section 51 of the Civil and Administrative Tribunal Act 2013 (NSW) having regard in particular to section 36 of the Civil and Administrative Tribunal Act 2013 (NSW), and subject to the relevant provisions of the Child Protection (Working with Children) Act 2012, to grant an adjournment: 1. the application for an adjournment was made at the earliest opportunity with adequate notice to the other party; 2. the nature of proceedings is protective and they are to be conducted with as little legal and technical formality as possible whilst affording the parties procedural fairness and natural Justice; 3. failure to grant the adjournment would deprive one of the parties, the Children's Guardian, the opportunity to adequately present its case in response to the applicant's case; 4. in the circumstances, if the adjournment were not granted the Children's Guardian would be deprived natural Justice; 5. a party to proceedings in this Division is entitled to be represented by a lawyer without requiring leave of the Tribunal and in the circumstances the respondent is unable to be represented by a lawyer of its choice due to circumstances not within its control; 6. the grant of an adjournment will facilitate the just, quick and cheap resolution of the real issues in the proceedings even though the hearing will be slightly delayed because the objects and paramount consideration under the Act is to protect the safety welfare and well-being of children and particularly to protect them from abuse which will not be adequately resolved if the Children's Guardian is not adequately represented; 7. the applicant will not be disadvantaged in the presentation of his psychological evidence due to the adjournment and the attendance of the Psychologist on the adjourned date; 8. the applicant will have the opportunity to further prepare his case and has had the opportunity to rehearse some of his arguments in advance of the hearing; 9. the grant of an adjournment to 9 June 2016 enables the Tribunal to hear the matter sufficiently close to the original hearing date for there to be considered to be minimal delay. 1. The decision of the Tribunal on 28 April 2016 was therefore that the hearing date of 28 April 2016 is adjourned to 9 June 2016. 2. The Tribunal orders: 1. The application for an adjournment of the hearing is granted. 2. The application filed 30 October 2015 is set down for hearing on 9 June 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: 13 May 2016