CFJ v Office of the Children’s Guardian [2016] NSWSC 1625

Supreme Court New South Wales

Medium Neutral Citation: CFJ v Office of the Children's Guardian [2016] NSWSC 1625 Hearing dates: 2 November 2016 and 3 November 2016 Date of orders: 18 November 2016 Decision date: 18 November 2016 Jurisdiction: Common Law Before: Schmidt J Decision: (1) Leave to commence the proceedings out of time is granted. (2) Leave to appeal is granted, but the appeal is dismissed. The usual order as to costs under the Uniform Civil Procedure Rules 2005 (NSW) in those circumstances is an order that CFJ pay the Guardian's costs, as agreed or assessed. Unless the parties approach within 14 days, that will be the Court's order. Catchwords: ADMINISTRATIVE LAW – leave to appeal against NSW Civil and Administrative Tribunal decision re working with children check clearance – s 27 of the Child Protection (Working with Children) Act 2012 – leave to commence proceedings out of time – leave granted – whether Tribunal failed to apply the Briginshaw standard – whether plaintiff was denied procedural fairness because possible offending under the Criminal Code Act 1995 (Cth) was not raised for consideration - whether Tribunal misconstrued the applicable statutory provisions – whether plaintiff was denied procedural fairness by receipt of opinions expressed by an unidentified doctor in School's report to Ombudsman – whether Tribunal failed to give adequate reasons – whether Tribunal's decision was legally unreasonable – appeal dismissed Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) (repealed) Commission for Children and Young People Act 1998 (NSW) (repealed) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Criminal Code Act 1995 (Cth) Ombudsman Act 1974 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Ainger v Coffs Harbour City Council [2005] NSWCA 424 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 BKE v Office of Children's Guardian & Anor [2015] NSWSC 523 BKV v Children's Guardian [2015] NSWSC 1602 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988 CFJ v Children's Guardian [2016] NSWCATAD 62 Children's Guardian v BQJ [2016] NSWSC 869 Children's Guardian v CFW [2016] NSWSC 1406 Commissioner for Children and Young People v FZ [2011] NSWCA 111 Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388 Italiano v Carbone & Ors [2005] NSWCA 177 Karakatsanis v Racing Victoria Ltd (2013) 42 VR 176; [2013] VSCA 305 Kasupene v Minister for Immigration & Citizenship [2008] FCA 1609 Kostas v HIA Insurance Services Pty Limited (2010) 241 CLR 390; [2010] HCA 32 M v M (1988) 166 CLR 69; [1988] HCA 68 MacPherson v The Queen (1981) 147 CLR 512; [1981] HCA 46 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1; [2006] HCA 53 PFC v R [2011] NSWCCA 275 Office of the Children's Guardian v CFW [2016] NSWSC 1406 Partington v R (2009) 197 A Crim R 380; [2009] NSWCCA 232 R v Miao [2016] NSWDC 181 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 Uszok v Henley Properties (NSW) Pty Limited [2007] NSWCA 31 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 Category: Principal judgment Parties: CFJ (Plaintiff) NSW Office of the Children's Guardian (Defendant) Representation: Counsel: Mr D Mahendra (Plaintiff) Ms T Wong (Defendant)