Tilley v Children’s Guardian [2017] NSWCA 174

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Tilley v Children's Guardian [2017] NSWCA 174 Hearing dates: 21 June 2017 Decision date: 19 July 2017 Before: Basten JA at [1]; Meagher JA at [49]; Leeming JA at [50] Decision: (1) With respect to the non-publication order made on 21 June 2017 –

(a) revoke the order to the extent that it prohibits publication of material identifying the appellant, and (b) order that there continue to be a prohibition on the publication of material that could identify the appellant's previous fiancée or any other person who had complained of prior misconduct by the appellant.

(2) Dismiss the appeal from the judgment of Fullerton J delivered on 8 June 2016.

(3) Order that the appellant pay the respondent's costs in this Court. Catchwords: CHILD WELFARE – applicant appealed from NCAT decision affirming refusal of Children's Guardian to grant working with children check clearance – applicant previously charged with disqualifying offences in circumstances where proceedings discontinued – whether applicant subject to assessment requirement within meaning of Child Protection (Working with Children) Act 2012 (NSW) s 14 – whether NCAT applied incorrect legal test and reversed onus of proof in determining whether satisfied that applicant posed risk to safety of children under s 18(2)

WORDS AND PHRASES – Child Protection (Working with Children) Act 2012 (NSW) Sch 1 cl 1(1) – whether "proceedings have been commenced" against applicant for purposes of determining whether applicant subject to assessment requirement Legislation Cited: Access to Justice (Federal Jurisdiction) Amendment Act 2012 (Cth), Sch 2, items 4, 5 Child Protection (Working With Children) Act 2012 (NSW), ss 13, 14, 15, 18, 27; cl 1, Sch 1; cl 1, Sch 2 Children and Young Persons (Care and Protection) Act 1998 (NSW), s 178F Civil and Administrative Tribunal Act 2013 (NSW), Sch 3, cl 17 Court Suppression and Non-publication Orders Act 2010 (NSW), ss 6, 7, 8 Crimes Act 1900 (NSW), ss 61I, 61J, 61N Criminal Procedure Act 1986 (NSW), ss 15, 47 Federal Court of Australia Act 1976 (Cth), ss 37AE, 37AG, 50 Interpretation Act 1987 (NSW), s 33 Cases Cited: Attorney General for New South Wales v Nationwide News Pty Ltd (2008) 73 NSWLR 635 Australian Broadcasting Commission v Parish (1980) 43 FLR 129 BKE v Office of the Children's Guardian [2015] NSWSC 523 BVI v Children's Guardian [2015] NSWCATAD 246 CJT v Office of the Children's Guardian [2017] NSWCA 48 Commissioner of Taxation v Unit Trend Services Pty Ltd (2013) 250 CLR 523; [2013] HCA 16 Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21 M v M (1988) 166 CLR 69; [1988] HCA 68 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Texts Cited: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 13 June 2012 Category: Principal judgment Parties: Christopher John Tilley (Appellant) Children's Guardian (Respondent) Representation: Counsel: Dr R Della-Bosca as agent (Appellant) Mr I Bourke SC/Ms G F Mahony (Respondent)