EDC v Children's Guardian [2020] NSWCATAD 261 | Case summary

NCAT Administrative and Equal Opportunity|2020-10-23

Background

This is an application to reinstate proceedings (Proceedings) pursuant to s 55(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). For the reasons set out in this decision, the application is dismissed.
The Proceedings were commenced by the applicant on 28 November 2019. The Proceedings sought administrative review of a decision of the respondent under s 18(2) of the Child Protection (Working with Children) Act 2012 (NSW) (WWC Act) to refuse a working with children check clearance (Decision). The Proceedings also sought a stay of the Decision.
The matter was listed for an interim order hearing on 5 December 2019. The orders issued by the Tribunal on 5 December 2019 included: 1. that the applicant has withdrawn his application for a stay of the Decision; and 2. a timetable for a hearing on 13 March 2020.
On 7 February 2020, the applicant's legal representative advised the Tribunal that the applicant wished to withdraw his application for administrative review. The parties were invited to make submissions on the application to withdraw and on that application being dealt with on the papers pursuant to s 50(2) of the NCAT Act. On 11 February 2020, the Tribunal issued orders that: 1. dispensed with a hearing for the application to withdraw; and 2. dismissed the Proceedings "Pursuant to s 55(1)(a) Civil and Administrative Tribunal Act 2013".
On 22 September 2020, the applicant filed an 'Application to reinstate proceedings' (Reinstatement Application). The Reinstatement Application was made using the relevant Tribunal form for a reinstatement application (Tribunal Form), which includes the following note immediately below the heading of the Tribunal Form: Complete this form to apply to reinstate proceedings that were dismissed under section 55(1)(c) of the Civil and Administrative Tribunal Act 2013 because you failed to appear in the proceedings.

Should the application be determined without a hearing?

Relevantly, s 50 of the NCAT Act provides: … (2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. (3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first: (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. (4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.
Following receipt of the Reinstatement Application, the Tribunal wrote to the parties and: 1. Required the respondent to provide any submissions on whether the Tribunal should reinstate the Proceedings. 2. Invited the parties to make submissions on an order being made to dispense with a hearing and the Reinstatement Application being dealt with on the papers.
In the Reinstatement Application, the applicant selected the option included in the Tribunal Form to note that the applicant does not wish the matter to be dealt with on the papers. The applicant explains why he does not wish the matter to be dealt with on the papers as follows: In my opinion my case is better resolved by filling in all of the gaps found in the Risk Assessment supplied by EPAC to [the Respondent]. This can only be done through giving the facts orally.
It appears from the above explanation and my review of the material filed in the Proceedings that the applicant's reasons for preferring a hearing are directed to matters that the applicant considers would be relevant in an administrative review of the Decision, rather than the Reinstatement Application. Whether the Proceedings are reinstated requires consideration of s 50(2) of the NCAT Act. For the purposes of this decision, the issues raised by the applicant in the Reinstatement Application are not relevant to a proposed order under s 50(2) of the NCAT Act to dispense with a hearing in the Reinstatement Application.
The respondent submitted that the matter should be dealt with on the papers.
Having reviewed all the materials and in view of the issues must be considered in the circumstances of this matter, I am satisfied that the Reinstatement Application can be adequately determined in the absence of the parties, by considering the materials provided by them. I therefore dispense with a hearing.

Consideration of the application to reinstate the Proceedings

Relevantly, s 55(1) of the NCAT Act provides: "(1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances: … (c) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings …"
Section 55(2) of the NCAT Act provides: "(2) The Tribunal may reinstate proceedings that have been dismissed under subsection (1)(c) if the Tribunal considers that there is a reasonable explanation for that failure."
As set out in [4(2)] above, the Tribunal dismissed the Proceedings under s 55(1)(a) of the NCAT Act. As s 55(2) of the NCAT Act provides for the reinstatement of proceedings dismissed under s 55(1)(c) of the NCAT Act, the issue is whether the Tribunal has the power to reinstate proceedings that were dismissed under s 55(1)(a) of the NCAT Act.

Appellant's submissions

The applicant's submissions are contained in the Reinstatement Application and an email dated 16 October 2020 in reply to submissions provided by the respondent.
The Reinstatement Application raises a number of difficulties that have arisen for the applicant following the Decision, as well as the importance of the applicant being granted a working with children check clearance under the WWC Act. The applicant submits that he withdrew from the Proceedings in February 2020 because he was unable to afford legal representation and he had an expectation at the time he withdrew that his (then) employer would continue to offer him employment.
In the email dated 16 October 2020, the applicant raises concerns with the manner in which the applicant states he was (or was not) notified about developments relevant to the applicant maintaining or securing a working with children check clearance. The email also raises concerns with alleged "lies" and "incorrect information" in material provided by the respondent for the purposes of the Proceedings before they were dismissed.

Respondent's submissions

The respondent opposes the application for reinstatement and makes the following submissions relevant to this matter (and I summarise and paraphrase): 1. Section 55(2) of the NCAT Act provides that the Tribunal may reinstate proceedings that have been dismissed under s 55(1)(c) of the NCAT Act. 2. The Proceedings were dismissed under s 55(1)(a) of the NCAT Act on the basis of a letter from the applicant's legal representative indicating that the applicant wished to withdraw from the Proceedings. 3. The power to reinstate proceedings in s 55(2) of the NCAT Act is specific and cannot be exercised in relation to the Reinstatement Application because the Proceedings were dismissed under s 55(1)(a) not s 55(1)(c) of the NCAT Act. 4. The Tribunal has previously found that the Tribunal does not have a broad power to reinstate proceedings beyond the circumstances captured by s 55(2) of the NCAT Act. 5. The Reinstatement Application should be dismissed.

Consideration

In Reisner v Bridge Housing Limited [2019] NSWCATAP 197, after determining that the proceedings the subject of a reinstatement application were dismissed under s 55(1)(a) of the NCAT Act and not s 55(1)(c), the Appeal Panel stated at [23]: It follows that the power to reinstate the appeal proceedings under s 55(2) of the NCAT Act is not available.
In Seven Network v Commissioner of Police, NSW Police Force [2017] NSWCATAD 31 the Tribunal considered circumstances similar to this matter in so far as the applicant had withdrawn its application for administrative review and the proceedings were dismissed pursuant to s 55(1)(a) of the NCAT Act. The applicant then made an application to reinstate the proceedings some weeks later. The Tribunal stated at [12] to [13]: Subsection 55(1) provides a number of bases upon which the Tribunal may dismiss proceedings. Section 55(2) provides that the Tribunal may reinstate proceedings that have been dismissed under subsection 55(1)(c) if it considers that there is a reasonable explanation for that failure. Subsection 55(1)(c) permits the Tribunal to dismiss proceedings where the applicant fails to appear in the proceedings. The circumstance that s 55(2) provides for the reinstatement of proceedings only where the proceedings were dismissed under s 55(1)(c) indicates that the power of reinstatement does not apply where proceedings were dismissed due to the applicant's withdrawal of the proceedings under s 55(1)(a).
The power in s 55(2) of the NCAT Act does not apply to proceedings that were dismissed under s 55(1)(a) of the NCAT Act. There is no reference to reinstatement of proceedings dismissed (as is the case in this matter) under s 55(1)(a). The applicant has not made any submissions or raised any suggestion that the Proceedings were dismissed under any provision other than s 55(1)(a) of the NCAT Act. From my review of the file, the only basis on which the Proceedings were dismissed was s 55(1)(a) of the NCAT Act. Accordingly, the Tribunal has no power to reinstate the Proceedings.
It is apparent from the Reinstatement Application and the email dated 16 October 2020 that the applicant has had, and continues to have, a number of difficulties arising from the Decision. However, the Reinstatement Application is an application under s 55(2) of the NCAT Act. If the Tribunal does not have the power to reinstate the Proceedings (for the reasons given above) then the Proceedings cannot be reinstated.

Conclusion

The Tribunal does not have the power to reinstate the Proceedings. The Reinstatement Application is dismissed pursuant to s 55(1)(b) of the NCAT Act.

Orders

The Tribunal orders: 1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) the Tribunal dispenses with the need for a hearing. 2. Pursuant to pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) the application to reinstate the proceedings is dismissed.

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 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: 23 October 2020

Civil and Administrative Tribunal Regulation 2013(NSW)

Civil and Administrative Tribunal Regulation 2014(NSW)

EDC v Children's Guardian

At a glance

Court

Decision date

Source

Judgment (9 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (2)

Cited By (1)