CHI v Children's Guardian

NCAT Administrative and Equal Opportunity|2016-05-20|Before: Prof P

Introduction

The Applicant, referred to as "CHI", is a 67 years old single man. The Applicant commenced volunteer work on 20 October 2015 on a probationary basis pending a successful Working with Children Check (WWCC) clearance.
The Applicant applied for a WWCC clearance on 14 October 2016. Section 18 of the Child Protection (Working with Children) Act 2012 (NSW) (Working with Children Act) provides that the Respondent must not grant a working with children check clearance to disqualified persons including a person convicted before, on or after the commencement of the section of an offence specified in Schedule 2 of the Working with Children Act. The Respondent informed the Applicant in a letter dated 30 October 2015 (attached to Exhibit A1) that he was a disqualified person for the purposes of the Act and must not be granted a WWCC clearance because he had been convicted of an offence under section 61E of the Crimes Act 1900 (NSW) (Crimes Act) and an offence under section 61N of the Crimes Act.
On 27 November 2015, the Applicant applied for an enabling order from the Tribunal pursuant to section 28 of the Working with Children Act (Exhibit A1).
The application was listed for hearing on 20 May 2016. At the start of the hearing, the Respondent applied to the Tribunal for the matter to be adjourned because the matter raised a jurisdictional question that had been before the Tribunal in another matter two weeks earlier. The decision and judgement in that matter had not at that point in time been handed down.
Following a brief adjournment in the hearing, the Applicant (appearing in person) informed the Tribunal that he supported the Respondent's application for an adjournment and also wanted to make his own application for adjournment so he could arrange to be legally represented in the substantive proceedings.

The applications for adjournment

Counsel for the Respondent, Ms Neville, submitted to the Tribunal there was a jurisdictional question to be determined in the matter before the substantive hearing could proceed. Ms Neville stated the question to be determined was whether amendments made to the Working with Children Act applied to the present proceedings. The Working with Children Act was amended by NSW Parliament on 28 September 2015 and the amendments commenced on 2 November 2015. The amendments inserted section 26(1) into the Working with Children Act which provides that certain persons are not entitled to apply for an enabling order from the Tribunal. Relevantly, the effect of the amendments is that if a person has been convicted of particular offences including those under sections 61E and 61N of the Crimes Act; if they committed the offence as an adult and if they received a sentence of full time custody for the offence (section 26(2)(a)) then that a person is not entitled to apply for an enabling order.
Ms Neville submitted that a jurisdictional decision needed to be made as to whether the amendments applied to the present proceedings. The Applicant had applied for a WWCC clearance and the Respondent had refused to grant the clearance before the relevant amendments commenced. The Applicant had made his application for an enabling order after the amendments had commenced. Ms Neville submitted that if the amendments were to apply to the Applicant then the Tribunal did not have jurisdiction to accept his application for an enabling order.
Ms Neville informed the Tribunal the issue as to whether an applicant was unable to apply for an enabling order if the amendments had commenced after the decision of the Respondent but before the application to the Tribunal was presently reserved before a differently constituted panel of the Tribunal. Ms Neville had also appeared as Counsel in those proceedings. She submitted it may be appropriate for the Tribunal to adjourn the hearing of the present substantive proceedings until after the issue had been determined in the other proceedings. Ms Neville requested a short adjournment so that she could confirm her instructions and also have the opportunity to explain her application to the Applicant who was unrepresented.
When the hearing resumed 20 minutes later, Ms Neville confirmed it was the Respondent's view that the proceedings should be adjourned until the jurisdictional issue had been determined by the other Tribunal panel. Ms Neville also informed the Tribunal that the Applicant had told her he would like to be legally represented before the Tribunal. Ms Neville said she had offered to provide the Applicant with a contact number for pro bono legal assistance through the Legal Aid Commission or the Law Society.
The Applicant told the Tribunal he supported the Respondent's application for an adjournment and wished to make his own application to adjourn the proceedings so he could arrange legal representation.

Tribunal's jurisdiction to grant an adjournment

The Tribunal has a discretionary power to grant an adjournment under section 51 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) and is required by section 36 of the CAT Act in matters of practice and procedure to conduct proceedings with the following guiding principle: 36 Guiding principle to be applied to practice and procedure (1) The "guiding principle" for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The Tribunal must seek to give effect to the guiding principle when it: (a) exercises any power given to it by this Act or the procedural rules, or (b) interprets any provision of this Act or the procedural rules. (3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal: (a) a party to proceedings in the Tribunal, (b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal. (4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings. (5) However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions.

Tribunal's decision to grant an adjournment

The Tribunal decided to grant the applications for adjournment.
The Tribunal was persuaded the CAT Act's "guiding principle" to "facilitate the just, quick and cheap resolution of the real issues in the proceedings" (emphasis added) supported adjourning the proceedings rather than hearing arguments and submissions on a preliminary jurisdictional issue that was already reserved for decision by another panel of the Tribunal. Consideration of the threshold jurisdictional issue by the Tribunal could delay the hearing of the substantive application (the "real issues") on the day of the hearing. This could result in the matter being adjourned part heard. The Tribunal was also of the view it was not procedurally fair to the Applicant to proceed with hearing a jurisdictional issue in circumstances where he was: 1. not legally represented and wanted the proceedings to be adjourned so he could engage legal representation; and 2. had no notice prior to the hearing that the jurisdictional issue was going to be raised by the Respondent.
In Sullivan v Department of Transport [1978] FCA 48; (1978) 20 ALR 323, Deane J stated that "a refusal to grant an adjournment can constitute a failure to give a party… the opportunity of adequately presenting his case". The practice and procedure of the Administrative and Equal Opportunity Division is prescribed by Schedule 3 of the CAT Act and it provides in section 9(1) that a party is entitled to legal representation by a lawyer without the leave of the Tribunal. Section 38 and 67 of the CAT Act also provide that the Tribunal is to act with as little formality as circumstances permit to appropriately determine matters without regards to technicalities or legal form.
The Tribunal had reference to the Tribunal's reasoning in the recent decision of CFT v Children's Guardian [2016] NSWCATAD 92 (28 April 2016) where it was held that failure to grant an adjournment would deprive one of the parties of the opportunity to adequately present its case.
The Tribunal was satisfied it should exercise its discretion pursuant to section 51 of the CAT Act with regard to section 36 of the CAT Act to grant the adjournment for the following reasons: 1. the grant of the adjournment will facilitate the just, quick and cheap resolution of the proceedings because time and resources will not be spent arguing and determining a jurisdictional issue that is already before the Tribunal for decision; 2. the nature of the proceedings is that they are to be conducted with as little legal formality as possible as well as affording the parties procedural fairness and natural justice; and 3. the Applicant will have the opportunity to seek to be legally represented and this will provide the opportunity for him to adequately prepare and present his substantive application as well as providing assistance (if necessary) with the jurisdictional issue before the Tribunal.
The decision of the Tribunal on 20 May 2016 was that the hearing date of 20 May 2016 is adjourned to a date to be set down by the Registry.
The Tribunal orders: 1. The Respondent's and Applicant's applications for an adjournment of the hearing are granted. 2. The application filed on 27 November 2015 is to be set down on a date to be fixed by the Registry. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 18 July 2016 - Corrected "type" 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: 18 July 2016

At a glance

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