BVT v Office of Children’s Guardian [2017] NSWSC 1763

Supreme Court New South Wales

Medium Neutral Citation: BVT v Office of Children's Guardian [2017] NSWSC 1763 Hearing dates: 6 September 2017 Date of orders: 15 December 2017 Decision date: 15 December 2017 Jurisdiction: Common Law Before: Beech-Jones J Decision: (1) The appeal against the decision of the New South Wales Civil and Administrative Tribunal in BVT v Children's Guardian (No 3) [2017] NSWCATAD 111 be allowed; (2) The decision of the New South Wales Civil and Administrative Tribunal in BVT v Children's Guardian (No 3) [2017] NSWCATAD 111 refusing the plaintiff's application for an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 filed 17 April 2015 be set aside; (3) The plaintiff's application for an enabling order be remitted to the New South Wales Civil and Administrative Tribunal for determination in accordance with law; (4) The Plaintiff's amended summons be otherwise dismissed; and (5) The defendant pay the plaintiff's costs of the proceedings. Catchwords: ADMINISTRATIVE LAW – Child Protection (Working with Children) Act 2012 – application for enabling order – applicant convicted of sexual assault against adult in 1973 – no offences since 1980 – seeks clearance certificate to care for step-granddaughter – application previously refused by NCAT but set aside on appeal – same Senior Member allocated to hear matter – apprehension of bias – Senior Member previously found applicant posed a risk to children – rejected applicant's credit – declined to recuse himself – apprehended bias established – apprehension of bias affected NCAT decision as only two members made decision – NCAT referred to absence of applicant engaging in pro-social behaviours – alleged involved taking into account irrelevant considerations – failure to afford procedural fairness – no notice given of intention to rely on absence of pro-social behaviour –applicant could not reasonably anticipate it would be relied upon – alleged failure to provide adequate reasons – not established –decision set aside – attempt to separately appeal decision of Senior Member to refuse to disqualify themselves – appeal futile – relief refused Legislation Cited: Administrative Decisions Review Act 1997 Child Protection (Working with Children) Act 2012, ss 18, 27, 28, 29, Sch 3 Civil and Administrative Tribunal Act 2013, ss 5, 9, 13, 27, 31, 38, 46, 62, 83, Sch 3 Court Suppression and Non-publication Orders Act 2010, ss 7, 8 Supreme Court Act 1970, s 69 Uniform Civil Procedure Rules 2005, r 36.16 Cases Cited: Absolon v NSW TAFE [1999] NSWCA 311 Australian Broadcasting Tribunal v Bond (1990)170 CLR 321; [1990] HCA 33 Ballantyne v Workcover Authority of NSW [2007] 5 DDCR 97; [2007] NSWCA 239 Barton v Walker [1979] 2 NSWLR 740 BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126 BHY v Children's Guardian [2015] NSWCATAD 91 BKE v Office of Children's Guardian [2015] NSWSC 523 British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2 BVT v Children's Guardian [2016] NSWCATAD 12 BVT v Children's Guardian (No 2) [2016] NSWCATAD 266 BVT v Children's Guardian (No 3) [2017] NSWCATAD 111 BVT v Office of the Children's Guardian [2016] NSWSC 1169 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 237; [2000] HCA 63 Insurance Australia Ltd t/a NRMA Insurance v Milton [2016] NSWCA 156 Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 Italiano v Carbone [2005] NSWCA 177 IW v City of Perth (1997) 191 CLR 1; [1997] HCA 30 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Livesey v The New South Wales Bar Association (1983) 151 CLR 288; [1983] HCA 17 McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209 Michael Wilson & Partners v Nicholls (2011) 244 CLR 427; [2011] HCA 48 Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 Public Service Association and Professional Officers' Association Amalgamated Union (NSW) v Secretary of the Treasury [2014] NSWCA 112 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22; SL v Secretary, Department of Family and Community Services [2016] NSWCA 124 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 SS v Department of Human Services (NSW) [2010] 12 DCLR(NSW) 29; [2010] NSWDC 279 T v H [1985] NSWSC, Unreported 19/12/1985 Waqa v Technical and Further Education Commission [2009] NSWCA 213 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 Category: Principal judgment Parties: BVT (Plaintiff) Office of Children's Guardian (Defendant) Representation: Counsel: Ms T Stevens (Plaintiff) Mr J Harris (Defendant)