Court of Appeal Supreme Court New South Wales Medium Neutral Citation: CJT v Office of the Children's Guardian [2017] NSWCA 48 Hearing dates: 10 March 2017 Decision date: 20 March 2017 Before: Ward JA, Sackville AJA Decision: 1. Grant the applicant leave to appeal from the decision of Fullerton J of 8 June 2016, limited to the following grounds: (a) Her Honour erred in law in upholding the decision of the New South Wales Civil and Administrative Tribunal (NCAT) that the applicant was subject to an assessment requirement within the meaning of s 14 of the Child Protection (Working with Children) Act 2012 (NSW). (b) Her Honour erred in law in holding that NCAT applied the correct statutory test in determining that the applicant posed a risk to the safety of children. 2. Direct the applicant to file an amended notice of appeal within seven days limited to the grounds stated in Order 1. 3. The costs of the application for leave to appeal are costs in the cause. Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Child Protection (Working with Children) Act 2012 (NSW), ss 5(1), 6, 8(1), 13(1), 14, 18(1), 18(2), 27(1), Sch 1 cl 1, Sch 2 cl 1 Children and Young Persons (Care and Protection) Act 1998 (NSW), s 178 Civil and Administrative Tribunal Act 2013 (NSW), s 83(1) Crimes Act 1900 (NSW), ss 61I, 61J, 61N Supreme Court Act 1970 (NSW), s 101(2)(r) Cases Cited: BVI v Children's Guardian [2015] NSWCATAD 246 CJT v Office of the Children's Guardian [2016] NSWSC 738 Clyne v The New South Wales Bar Association (1960) 104 CLR 186; [1960] HCA 40 Re DG and the Adoption Act [2007] NSWCA 241; 244 ALR 195 Category: Principal judgment Parties: CJT (Applicant) Office of the Children's Guardian (Respondent) Representation: Counsel: Applicant represented by Dr R Della-Bosca acting as his agent Ms GF Mahony (Respondent) Solicitors: Applicant represented by Dr R Della-Bosca acting as his agent Crown Solicitor's Office (Respondent) File Number(s): 2016/270276 Publication restriction: Non-publication order re applicant's name Decision under appeal Court or tribunal: Supreme Court of New South Wales Citation: [2016] NSWSC 738 Date of Decision: 8 June 2016 Before: Fullerton J File Number(s): 2015/349994 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. THE COURT: The applicant seeks leave to appeal from a decision of a Judge of the Common Law Division (Fullerton J). [1] Her Honour dismissed the applicant's appeal on a question of law from a decision of the New South Wales Civil and Administrative Tribunal (NCAT). [2] In that decision [3] the Administrative and Equal Opportunity Division of NCAT, constituted by a Senior Member, affirmed a decision of the Children's Guardian [4] to refuse the applicant's application under s 13(1) of the Child Protection (Working with Children) Act 2012 (NSW) (Act) for a "working with children check clearance" (Clearance). 2. The applicant requires leave to appeal because (relevantly) the judgment or order he challenges does not involve a matter at issue amounting to or of the value of $100,000 or more. [5] The respondent to the application (Children's Guardian) opposes the grant of leave. 3. The applicant was not legally represented at the hearing. However, his wife was given leave to make submissions on his behalf. 4. At the conclusion of the hearing, the Court announced that it proposed to grant leave to appeal on two limited issues. The Court indicated that it would not make formal orders at that time, but would do so when delivering reasons for judgment. These are the reasons. Background 1. Section 8(1) of the Act prohibits a person from engaging in "child-related work" [6] unless that person holds a Clearance [7] or has made an application for the issue of a Clearance. 2. By an application dated 13 May 2014, the applicant applied for a Clearance. The applicant stated that he intended to work with children in a volunteer capacity in a community-based organisation affiliated with his church. At that time, the applicant was the subject of criminal charges arising from complaints made by his former partner. There is no dispute that, as the primary Judge recorded, these charges alleged offences contrary to ss 61I (sexual assault), 61J (aggravated sexual assault) and 61N (act of indecency) of the Crimes Act 1900 (NSW) (Crimes Act). 3. The applicant was committed for trial in the District Court on each of the charges, with the trial due to commence on 13 November 2014. 4. On 17 July 2014, the Children's Guardian advised the applicant that he was a "disqualified person" within the meaning of s 18(1)(b) of the Act because he was a person against whom proceedings for offences specified in Sch 2 of the Act had been commenced and the proceedings were still pending. [8] Accordingly, s 18(1) prevented the Children's Guardian from granting the applicant a Clearance. 5. As has been noted, the applicant's trial was listed to commence in the District Court on 13 November 2014. It appears that prior to the trial the complainant advised the Crown that she was not willing to give evidence. As a consequence, a nolle prosequi was entered in respect of each of the three charges against the applicant. Once the criminal proceedings were terminated, the applicant was no longer a "disqualified person" within the definition in s 18(1) of the Act. The Children's Guardian's risk assessment 1. Despite the absence of a conviction, the Children's Guardian advised the applicant that he would be subject to a risk assessment before his application for a Clearance could be finally determined. It appears that the Children's Guardian took the view that the applicant was a person "subject to an assessment requirement" by reason of s 14 and cl 1(1)(b) of Sch 1 of the Act. [9] 2. On 23 March 2015, the Children's Guardian notified the applicant that it had completed the risk assessment and proposed to refuse his application for a Clearance. The NCAT Decision 1. On 2 April 2015, the applicant applied to NCAT pursuant to s 27(1) of the Act for administrative review under the Administrative Decisions Review Act 1997 (NSW) (ADR Act). NCAT published its reasons on 24 November 2015 for rejecting the applicant's application for review. 2. The Senior Member concluded that he was unable to make a positive finding that the criminal allegations had been proved to a civil standard. In his view, whether the events occurred as alleged "remain[ed] open". [10] But he found that "the existence of a real and appreciable risk ha[d] not been disproven" [11] and that, on the evidence, the applicant posed "a real and appreciable risk to the safety of children". [12] The Senior Member also stated that: [13] "the evidence and material received by the Tribunal also establishes that the Tribunal cannot be satisfied that the applicant does not pose a risk to the safety and wellbeing of children". Taking into account that the safety, welfare and well-being of children was the paramount consideration, the Senior Member considered that the applicant's application for a Clearance had to be refused. [14] 1. The applicant relied on numerous grounds of appeal before the primary Judge, not all of which raised questions of law. However, he did contend that neither the Children's Guardian nor NCAT had jurisdiction to undertake a risk assessment because the charges against him had been terminated without proceeding to a trial. It does not appear that the primary Judge specifically addressed this contention. 2. On a generous reading of the applicant's submissions before the primary Judge, he also argued that the Senior Member did not apply the correct statutory criterion in determining that the applicant posed a risk to the safety of children. The primary Judge concluded that NCAT had applied the correct test. 3. Whether the Children's Guardian and NCAT had jurisdiction to conduct a risk assessment depends on whether the applicant was a person subject to an assessment requirement within the meaning of s 14 of the Act. The answer to that question in turn depends upon whether the terms of cl 1(1)(b) of Sch 1 were satisfied: that is, whether proceedings had been commenced against the applicant for an offence in cl 1 of Sch 2 to the Act and the applicant was not because of those proceedings a disqualified person. [15] 4. Ms Mahony, who appeared for the Children's Guardian, submitted that cl 1(1)(b) of Sch 1 applies to a person against whom criminal proceedings for relevant offences have been commenced, but where the proceedings have been terminated by the entering of a nolle prosequi. This submission has some force but it appears that cl 1(1)(b) of Sch 1 may give rise to some questions of construction. There is a public interest in this Court addressing any such questions that arise in the present case. 5. Ms Mahony accepted that NCAT, in carrying out its review function, was bound to apply s 18(2) of the Act, which provides as follows: "The Children's Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children's Guardian is satisfied that the person poses a risk to the safety of children." On this basis, it is arguable that NCAT applied the wrong test and that the primary Judge should have concluded that NCAT erred in law. 1. There is no substance to any of the other issues raised by the applicant in support of the application for leave to appeal. 2. The Court makes the following orders: 1. Grant the applicant leave to appeal from the decision of Fullerton J of 8 June 2016, limited to the following grounds: (a) Her Honour erred in law in upholding the decision of the New South Wales Civil and Administrative Tribunal (NCAT) that the applicant was subject to an assessment requirement within the meaning of s 14 of the Child Protection (Working with Children) Act 2012 (NSW). (b) Her Honour erred in law in holding that NCAT applied the correct statutory test in determining that the applicant posed a risk to the safety of children. 2. Direct the applicant to file an amended notice of appeal within seven days limited to the grounds stated in Order 1. 3. The costs of the application for leave to appeal are costs in the cause. ********** Endnotes 1. CJT v Office of the Children's Guardian [2016] NSWSC 738 (Primary Judgment). 2. Section 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW) provides that a party to an "external appeal" may with the leave of the Supreme Court appeal on a question of law to the Court against any decision made by NCAT in the proceedings. 3. BVI v Children's Guardian [2015] NSWCATAD 246 (NCAT Decision). 4. The Children's Guardian is appointed under s 178 of the Children and Young Persons (Care and Protection) Act 1998 (NSW). 5. Supreme Court Act 1970 (NSW), s 101(2)(r); Clyne v The New South Wales Bar Association (1960) 104 CLR 186; [1960] HCA 40 at 205 per curiam; Re DG and the Adoption Act [2007] NSWCA 241; 244 ALR 195 at [19]-[22] (Handley AJA, Basten and Santow JJA agreeing). 6. "Child-related work" is defined in s 6 of the Act to include work involving direct contact with a child. A "worker" is defined to include a volunteer: s 5(1). 7. The expression "working with children clearance" is defined to mean an authorisation in force under the Act to engage in child-related work: s 5(1). 8. Section 18(1) of the Act provides as follows: "The Children's Guardian must not grant a [Clearance] to the following persons ('disqualified persons'): (a) a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult, (b) a person against whom proceedings for any such offence have been commenced, if the offence was committed as an adult, pending determination of the proceedings for the offence." Schedule 2 cl 1(e) specifies, among others, offences under ss 61I, 61J and 61N of the Crimes Act. 9. Section 14 provides that a person is subject to an assessment requirement under the Act if any of the matters specified in Sch 1 apply to that person. Clause 1(1)(b) of Sch 1 provides as follows: "(1) Proceedings have been commenced against a person: … (b) for an offence specified in clause 1 of Schedule 2, if the offence was committed as an adult, and the person is not because of those proceedings a disqualified person" As has been noted, Sch 2 cl 1 specifies offences against ss 61I, 61J and 61N of the Crimes Act. 10. NCAT Decision at [82]. 11. NCAT Decision at [83]. 12. NCAT Decision at [97]. 13. NCAT Decision at [98]. 14. NCAT Decision at [99]-[101]. 15. See note 9 above. 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: 20 March 2017