DGS v Office of the Children’s Guardian [2020] NSWSC 127

Supreme Court New South Wales

Medium Neutral Citation: DGS v Office of the Children's Guardian [2020] NSWSC 127 Hearing dates: 22 August 2019 Date of orders: 26 February 2020 Decision date: 26 February 2020 Jurisdiction: Common Law Before: Fullerton J Decision: 1. Leave granted to extend the time for filing the amended Summons. 2. Appeal allowed. 3. The decision of the Civil and Administrative Tribunal of 2 January 2019 be set aside. 4. The plaintiff's application for a review of the refusal by the Children's Guardian to grant him a Working With Children Check clearance be remitted to a differently constituted Tribunal for determination in accordance with law. 5. The defendant is to pay the plaintiff's costs. Catchwords: ADMINISTRATIVE LAW – judicial review – appeal from decision of the New South Wales Civil and Administrative Tribunal confirming refusal to grant a Working with Children Check clearance – whether Tribunal erred in law by failing to take into account mandatory consideration in s 30(1)(j) of the Child Protection (Working with Children) Act – by taking into account as an irrelevant consideration that FACS had "substantiated allegations of sexual abuse" – by making factual findings without an adequate evidentiary foundation children Legislation Cited: Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Working with Children) Regulations 2013 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Cases Cited: Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223 BKE v Office of Children's Guardian [2015] NSWSC 523 CPD v Office of the Children's Guardian [2019] NSWSC 8 Commission for Children and Young People v FZ [2011] NSWCCA 11 DGS v Children's Guardian [2018] NSWCATAD 302 Lo v Chief Commissioner of State Revenue [2013] NSWCA 180; 85 NSWLR 86 Office of the Children's Guardian v CFW [2016] NSWSC 1406 Re Benji and Perry [2018] NSWSC 1750 Category: Principal judgment Parties: DGS (Plaintiff) Office of the Children's Guardian (Defendant) Representation: Counsel: K Ginges (Plaintiff) I Fraser (Defendant)