Rix v State of New South Wales & Ors [2005] NSWSC 329 | Case summary

JUDGMENT 1 Master: The plaintiff sought relief in the Administrative Decisions Tribunal of New South Wales (the Tribunal). He made application for a declaration to the effect that the Child Protection (Prohibited Employment) Act 1998 (the Act) did not apply in respect of an offence of "commit act of gross indecency". It was an offence that involved a 16 year old boy. In those proceedings, he was referred to as "Mr FW". 2 On 25 February 1985, such offence had been found to be proved but no conviction was recorded. The offence occurred in October 1984. 3 At the time of application, the plaintiff was 75 years of age. He presented as applying for the declaration because he wished to continue being a sports coach with young people. 4 His application was heard during 2003. It concluded on 26 November 2003. A decision was given on that date. Written reasons were provided on 6 May 2004. 5 The order made by the Tribunal was that the application be dismissed. The reasons for decision were the following:- 26 This Tribunal is required to take into account the factors or matters enumerated in s9(5) of the Act: a) The offence for which Mr FW was convicted is clearly a serious one. His conduct may not be at the upper bound in the scale of seriousness, but neither is it a lesser or trivial offence. It is made more serious by the fact that he committed that offence while in a position of some authority over the young victim. a1) Said offence occurred some twenty years ago. b) Mr FW was 56 at the time of that offence. c) The age of the victim was approximately 16 years. d) There was an age difference of some forty years. d1) Mr FW is presently 75. e) Mr FW's total criminal record is of much concern. The 1996 charge is particularly relevant in this context. The victim was 15, and Mr FW 66. The totality of the record indicated scant regard for the law on the part of Mr FW, and not much regard for the safety of children or young people. f) Mr FW's self-serving and self-justifying explanations for his various offences and for his conduct in general indicate a lack of remorse, and a complete unwillingness or inability to accept any responsibility for his behaviour, or even to accept that his behaviour, such as administering a prohibited substance to a young person, could be seriously harmful. 27 Section 9(4) of the Act does not allow this Tribunal to grant the declaration sought by the Applicant "unless it considers that the person the subject of the proposed order does not pose a risk to the safety of children". I am unable, on the basis of all the evidence and submissions presented in these proceedings, to come to the view, or belief, that Mr FW does not pose such risk. Rather, I have come to regard that such risk is quite real. I must therefore decline the application. 6 On 29 June 2004, the plaintiff filed a summons in this Court. The summons has been twice amended. The present process is an amended summons filed on 15 December 2004. The grounds of appeal as set forth in that document are as follows:- The plaintiff wishes to plead an appeal on:- · Lack of procedural fairness; · Taking into account irrelevant circumstances; · Failing to take into account relevant material consideration; · Error of law on the face of the record; · Excess of jurisdiction; · Denial of natural justice; · Error of law. 7 The appeal was heard on 13 April 2005. The plaintiff appeared in person. He discontinued against the first defendant. The second defendant was represented by Mr Janssen, solicitor. The third defendant made a submitting appearance. Following the hearing, judgment was reserved. 8 The plaintiff's task was not made easy by reason of the absence of part of the transcript (the Court only had transcript for 26 November 2003) and his failure to have other material (including many of the documents in evidence before the Tribunal) in evidence before this Court. 9 The appeal is presently incompetent. It has been brought well out of time. Although no application for extension of time was made, the point was not taken. 10 An appeal to this Court is available against a decision on a question of law only (see s119 of the Administrative Decisions Tribunal Act 1997). Although the present appeal is not brought against any decision of the Appeal Panel, it is permitted by way of exception because it concerns a decision under the Act. 11 The avenue of the appeal is obviously a narrow one. However, what falls within it may be contentious. The terminology used in s119 of the Act differs from certain of the other comparable appellate provisions (see inter alia s69 of the Local Courts (Civil Claims) Act 1970 and s67 of the Consumer Trader & Tenancy Tribunal Act 2001). Mr Janssen was not able to refer me to any authority which dealt with the question of the ambit of the appeal and that question was not the subject of argument before me. 12 I shall put the question of the incompetence of the appeal to one side and look at its merits. 13 The Tribunal had before it a large body of evidence. It suffices to mention just certain of it. There was the documentary evidence referred to in paragraph 11 of the reasons. There was the criminal history referred to in paragraph 14 thereof. There was the psychiatric report and evidence referred to in paragraph 21 thereof. 14 The plaintiff's current process has annexed to it, inter alia, detailed submissions made in support of the grounds of appeal. This material has been supplemented by both written and oral submissions presented in Court. This written material comprised a bundle of documents prepared by the plaintiff himself which I read subsequent to reserving judgment in the matter. 15 In the present case, it is unnecessary to individually address the various submissions. It suffices to say that a careful reading of them discloses no error on a question of law. 16 Whilst the application itself is not before the Court, it seems to be common ground that the application to the Tribunal was made pursuant to s9 of the Act. Subsection 9(1) thereof enables application to be made by a prohibited person and confers a discretionary power to grant the relief specified therein. The exercise of that power is controlled by the provision of subsection (4) thereof. In deciding whether or not to make an order, the Tribunal is required to take into account the matters specified in subsection (5) thereof. The onus of satisfying the Tribunal of an entitlement to relief is borne by the plaintiff. He must show error on a question of law that justifies the disturbing of the decision of the Tribunal. 17 Paragraph 27 of the reasons reveals that it was a finding made pursuant to the provisions of s9(4) of the Act that was determinative of the decision in this case. This provision prohibits the Tribunal from making an order under s9 unless the Tribunal considers that the person the subject of the proposed order does not pose a risk to the safety of children. 18 Such a provision may be described as imposing a threshold requirement to the granting of relief pursuant to s9 itself. Until it is satisfied, the discretionary power cannot be exercised. 19 In this case, the Tribunal addressed the right question. It had regard to the material before it and came to the view that the threshold requirement had not been satisfied. 20 There was evidence before the Tribunal that founded the view that was taken by it. It seems to me that the view taken was reasonably open to the Tribunal. In those circumstances, the finding was unassailable. 21 It doomed the application to failure. The exercise of the discretionary power was not a matter that could be considered by the Tribunal. 22 It was a result that may have been inevitable by reason of the lack of evidence adduced by the plaintiff to demonstrate that he did not pose a risk to children. This evidentiary deficiency was brought to his attention by the Tribunal during the hearing (Tr 20.11.03 p6). 23 Although what has been said suffices to dispose of the appeal, I will proceed to expressly deal with certain of the many arguments propounded by the plaintiff. 24 By way of prefatory observation, I should mention one matter that presented difficulty. Despite being frequently asked to do so, the plaintiff was not able to refer to any particular matter which appeared within the stated reasons of the Tribunal and identify it as throwing up error on a question of law. 25 Largely, he looked to evidence that had been given (including that given by Professor Greenberg) and the content of the submissions made by opposing counsel (Mr Higgins). In relation to these matters, it was sought to refer the Court to numerous passages in the transcript. Despite repeated assistance directing him to have regard to the expression of the reasoning process, the plaintiff seemed to be reluctant to accept that his approach was doing little to advance his case in the appeal. 26 He identified various arguments as falling within the category of denial of procedural fairness. The question of whether or not any of these matters fall within the ambit of s119 of the Act may be contentious. For present purposes, I shall put that question aside. 27 There was a general allegation that the plaintiff was denied his right of rebuttal. As I understand this submission, it was said that restriction was imposed by way of time and content of his final submissions. 28 The transcript does not support that submission. There seems to have been a consensus reached whereby the parties were desirous of completing the hearing on 26 November 2003, there were to be oral submissions and the plaintiff would have 60 minutes in which to make his submissions. The parties were also given time to prepare submissions. It appears from the transcript that the plaintiff made and completed his submissions within the allocated time. I do not accept the submission that restriction was imposed on the content of what he was allowed to say. It seems to me that he had a reasonable opportunity to present his case. 29 Directions had been given relating to the service of material upon which the parties intended to rely. The report provided by Professor Greenberg was served outside the time allowed by the directions (about two weeks late and about two weeks before the hearing date). However, the professor was made available for cross-examination and was cross-examined by the plaintiff. 30 I should add that there was an unresolved issue as to whether or not an extension of time was granted for the serving of that report. Such question can be put aside as its significance was lost in what subsequently happened. 31 The course was taken that the Tribunal would proceed as far as it could go in relation to the evidence of the Professor. What happened was that the plaintiff was able to complete his lengthy cross-examination and no further time was required by him. 32 An objection to the tender of the report "on account of the time factor" was considered by the Tribunal and rejected. If that decision is a matter relied on in this appeal, it is my view that no error has been demonstrated. 33 There was a submission made concerning the report and evidence of Professor Greenberg. There was an assertion that there had been a contravention of a code of conduct pertaining to expert witnesses. There was an assertion that the Professor had become the sole advocate in the proceedings. 34 A submission concerning the matter of the contravention was confused and unfounded. It appeared that the plaintiff had in mind relying on authority relevant to proceedings in the District Court and the rules of the District Court relating to expert witnesses. The Court was informed that the Tribunal had no similar rule governing its processes. 35 The assertion as to the role of the Professor in the proceedings seems to be founded more on emotional reaction to his evidence, rather than what in fact happened in the conduct of the proceedings before the Tribunal. The transcript fails to support what was said by the plaintiff on this matter. 36 I should digress to observe that the plaintiff had initially agreed to participate in a psychiatric assessment to be made by the Professor. He later changed his mind and refused to do so. As a consequence, his report was prepared without the benefit of interview with the plaintiff and was based on documentary material that had been presented to him (which included statements from the plaintiff himself). 37 I am not satisfied that the Professor did give other than expert evidence. Whether or not there was a need to do so, the Tribunal satisfied itself that he had complied with the code of conduct. 38 There was a broad brush assertion by the plaintiff that "80 per cent" of the material before the Tribunal (including 80 per cent of the evidence given by the Professor) was wrongly admitted into evidence. This assertion was not supported by cogent argument. The nature of the error was not expounded. It seems to me to be an assertion devoid of substance. I consider that the plaintiff has not satisfied the Court that any of the material was erroneously admitted. 39 It may be added that if there was complaint as to the admission of material concerning the plaintiff's criminal record, then it is misconceived. It is a matter that the Tribunal is to take into account (s9(5)(e)). 40 Save for one remaining matter, I have briefly dealt with those submissions which were of prominence in the plaintiff's presentation. 41 The remaining matter concerns the 1984 offence. The Act has application to a person convicted of a "serious sex offence". The Court has been told that the 1984 offence was treated as falling within that category and saw the plaintiff being listed in 2002 on what has been described as the "Prohibited Employment Register". 42 The offence (which is referred to as the index offence in the stated reasons) was dealt with under s556A of the Crimes Act 1900. As a result, although he had been found guilty of the offence, the Court did not proceed to a conviction. The plaintiff maintains that in these circumstances, he is not a person who has been convicted of a serious sex offence and therefore does not fall within the category of a "prohibited person" as defined in the Act. 43 It seems to me that the Tribunal correctly found that his contention was untenable. The contention ignores the definition of "conviction" which is found in s3 of the Act. It is defined as follows:- 3(b) … conviction includes a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction. 44 Whilst it was not argued, it may be observed that if the contention maintained by the plaintiff had been correct, it would have rendered his application to the Tribunal misconceived and pointless. The power conferred by s9 enables the making of an order on the application of a prohibited person declaring that the Act is not to apply to that person in respect of a specified offence. If he is not a prohibited person and there is no specified offence, s9 has no application in the circumstances. 45 I shall conclude by observing that after careful evaluation of all the material that has been placed before me, I have come to the view that I am not satisfied that any of the grounds of appeal have been made out. 46 The summons is dismissed. The plaintiff is to pay the costs of the summons. **********

Rix v State of New South Wales & Ors

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