BVT v Office of Children’s Guardian

1. [1]

   In April 2015 the plaintiff (“BVT”) applied to the NSW Civil and Administrative Tribunal (“NCAT”) for an “enabling order” under s 28 of the Child Protection (Working with Children) Act 2012 (the “Working with Children Act”) to enable him to resume unsupervised contact with his step-granddaughter (“C”) .

2. [2]

   On 13 January 2016, NCAT, constituted by a “senior member” and a “general member” refused that application (BVT v Children’s Guardian [2016] NSWCATAD 12; “BVT (No 1)”). BVT appealed this decision to this Court pursuant to cl 17(1)(a) of Schedule 3 to the Civil and Administrative Tribunal Act 2013 (“NCAT Act”) which allows for an appeal on a “question of law”. On 23 August 2016, Adamson J allowed the appeal, set aside NCAT’s decision and remitted BVT’s application for an enabling order to NCAT “for determination in accordance with law” (BVT v Office of the Children’s Guardian [2016] NSWSC 1169 at [84]).

3. [3]

   On the remittal of the application to NCAT the matter was allocated to be reheard by the same Senior Member who decided BVT (No 1) (the “Senior Member”) and a different general member. On 22 November 2016, the Senior Member published reasons for refusing an application made by BVT for him to recuse himself on the grounds of apprehended bias (BVT v Children’s Guardian (No 2) [2016] NSWCATAD 266; “BVT (No 2)”).

4. [4]

   On 14 December 2016, NCAT, constituted by the Senior Member and the (different) general member, heard the application for an enabling order. On 6 April 2017, they published joint reasons for refusing the application (BVT v Children’s Guardian (No 3) [2017] NSWCATAD 111; “BVT (No 3)”).

5. [5]

   BVT appeals the decision in BVT (No 3) on a question of law pursuant to cl 17(1)(a) of Schedule 3 to the NCAT Act. He also appeals from the decision in BVT (No 2) and, to the extent it is permissible and necessary, seeks leave to appeal from that decision. For the reasons set out at [106] these applications are futile and it is unnecessary to decide whether an appeal is permissible from BVT (No 2) and, if so, whether leave is required.

6. [6]

   The grounds of appeal from BVT (No 3) are that the Senior Member was affected by apprehended bias and that, in deciding BVT (No 3), NCAT did not provide adequate reasons, took into account an irrelevant consideration and denied BVT procedural fairness.

7. [7]

   Ultimately, three matters were relied on to demonstrate the apprehension of bias on the part of the Senior Member, namely, the manner in which the Senior Member questioned BVT at the hearing that preceded BVT (No 1), the adverse findings made against BVT in BVT (No 1) and the similarity between some of the findings in BVT (No 3) and BVT (No 1) [1] . To address this complaint it is necessary to provide a detailed discussion of the course of the hearings in NCAT and its decisions although, as I will explain, the reliance on the findings in BVT (No 3) was misconceived. Nevertheless, for the reasons set out below, I am satisfied that that complaint is made good as is the complaint that there was a denial of procedural fairness by NCAT. The balance of the complaints are rejected.

Non-Publication Orders

1. [8]

   Throughout the course of the proceedings in NCAT and before Adamson J, orders were made prohibiting the publication or broadcasting of the name of the plaintiff, his partner and her grandchild (ie, C) and requiring that the plaintiff be referred to as “BVT”. At the hearing of these proceedings, I made an order under s 7 of the Court Suppression and Non-Publication Orders Act 2010 to the same effect. I did so because I was satisfied that publication of those matters was likely to lead to an identification of C and that it was in the public interest to avoid undue distress to her (s 8(1)(e)). This concern outweighs the public interest in “open justice” to the extent that that is served by her identification (s 8(1)(e); see BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126 at [3] per Adamson J).

2. [9]

   During the hearing I also made an order under s 7 of the Court Suppression and Non-publication Orders Act that the name and identity of the victim of the sexual assault referred to in [14] not be published on the grounds stated in s 8(1)(e) of that Act. Although her identity appears to have been disclosed in published decisions I was satisfied that it is in the public interest that victims of sexual assault not be exposed to the potential trauma that would arise from their being identified as a result of publicity being given to a crime of sexual violence committed against them no matter how long ago it occurred (s 8(1)(e)).

3. [10]

   I described the legislative scheme governing the granting and refusing of clearance certificates and the making of enabling orders under the Working with Children Act, in BKE v Office of Children’s Guardian [2015] NSWSC 523 at [8] to [35] (“BKE”). I will not repeat that discussion. It should be read together with this judgment. It suffices to state that, in determining BVT’s application, NCAT was considering the exercise of the power conferred by s 28(1) to make an enabling order and the power conferred by s 28(6) to grant a clearance. In respect of each power, NCAT was obliged to consider the criteria specified in s 30(1) and to determine whether BVT had displaced a presumption that he posed “a risk to the safety of children” (s 28(7); see BKE at [26] to [33]).

4. [11]

   I noted earlier that the decisions in BVT (No 1) and BVT (No 3) were made by NCAT constituted by a senior member and a general member. Section 9 of the NCAT Act identifies five classes of members of NCAT namely, the President, Deputy Presidents, Principal Members, Senior Members and General Members.

5. [12]

   To be appointed a senior member a person must either be an “Australian lawyer” of at least seven years standing or, in the opinion of the person making the appointment, be someone who has “special knowledge, skill or expertise” in relation to any one or more classes of matters in respect of which NCAT has jurisdiction (NCAT Act, s 13(5)). A person is qualified to be a general member of NCAT if, in the opinion of the person making the appointment, they are someone who has “special knowledge, skill or expertise” in relation to any one or more classes of matters in respect of which NCAT has jurisdiction or if they are considered capable of representing the public (or a sector of the public), or a particular organisation, body or group of persons (or class of organisations, bodies or groups of persons), in relation to any one or more classes of matters in respect of which NCAT has jurisdiction (NCAT Act, s 13(6). Beyond those potential differences in the qualifications of senior members and general members, there is nothing in the NCAT Act to suggest that, where NCAT is constituted by a senior member and a general member, one or other member has any greater or lesser role in the decision-making process.

6. [13]

   Section 27(1)(d) of the NCAT Act provides that, in a proceeding such as that initiated by BVT, NCAT is to be constituted by one or more “Division members of the Division” to which the function of dealing with the proceedings is allocated. Section 3(1) of Schedule 3 to the NCAT Act allocates proceedings under the Working with Children Act to the Administrative and Equal Opportunity Division.

Background

1. [14]

   The events that gave rise to the application for a clearance certificate and the decision to refuse an enabling order were set out by Adamson J at [2016] NSWSC 1169 (at [15] to [22]) as follows:

2. [15]

   To this chronology I would add that BVT’s application for a clearance certificate was refused by the Children’s Guardian on 20 November 2013. Given BVT’s conviction that refusal was mandatory (Working with Children Act, s 18(1)).

3. [16]

   Even though the events that triggered BVT’s application concerned the report made in 2013 concerning C, that matter barely featured in either BVT (No 1) or BVT (No 3). Instead, NCAT focused on the circumstances of the offence committed in 1973 (the “index offence”) and its present relevance to the risk that BVT posed to children.

The First Hearing

1. [17]

   As noted the first ground of review in relation to BVT (No 3) is that there was a reasonable apprehension of bias in the form of prejudgment on the part of the Senior Member who joined in that decision.

2. [18]

   Counsel for BVT, Ms Stevens, relied on aspects of the questioning of witnesses by the Senior Member in the hearing that took place prior to the decision in BVT (No 1) (the “first hearing”), as well as certain findings made in BVT (No 1) and BVT (No 3) as raising an apprehension of bias in the form of pre-judgment on the part of the Senior Member in deciding BVT (No 3). To address her contention it is necessary to outline the course of the hearing and the findings made in BVT (No 1), BVT (No 2) and BVT (No 3) from the perspective of the “hypothetical reasonable observer” observing the hearing and reading the decisions in BVT (No 1) and BVT (No 2) (Johnson v Johnson (2001) 201 CLR 488; [2000] HCA 48 at [12]).

3. [19]

   Tendered at the first hearing was a statement of police facts that was obtained from the District Court which had custody of the file of the Court of Quarter Sessions relating to BVT’s plea of guilty to the index offence (see [2016] NSWSC 1169 at [24]). The documents produced included a record of interview signed by BVT and read out to him. In that record of interview BVT said that he was “mad with the grog ... I just wanted to frighten her so that I could root her” and that he used a pocket knife with the medium blade open to threaten the victim. The documents produced also included statements of the victim, her boyfriend and another witness. In her statement the victim recalled, inter alia, that the offender stated “I’ll kill you if you don’t let me root you” and she replied “I’d rather you kill me than rape me” [2] .

4. [20]

   The material produced also included a document said to be the police facts. The latter recorded the following [3] :

5. [21]

   Adamson J reviewed the material concerning the charges that was placed before NCAT during the first hearing in detail [4] . Her Honour noted that there was no material provided such as a transcript of proceedings or sentence remarks from which the “facts on the basis of which [BVT] was sentenced” could be determined [5] .

6. [22]

   Also tendered from the Court file was a report from a psychiatrist, Dr Robbie, dated 5 June 1973 concerning BVT. The report included the following [6] :

7. [23]

   An affidavit from BVT was read at the first hearing in which he stated that he was “drunk at the time” of the commission of the index offence, that he did not know the victim or how old she was. He stated that, “I have tried hard to remember the details of the offence” but that “[a]s hard as I have tried I cannot recall the specifics of what happened that night” [7] . During the first hearing he was briefly cross examined on the circumstances of the offence by Counsel for the Children’s Guardian. He was asked whether the documents obtained from the District Court assisted his recollection, to which he responded, “not really because I was – as I said to you before, I was drunk” [8] . He could not recall telling the victim he had a knife or that he “would kill her if she didn’t let you root her” [9] . He denied that he ever carried a knife [10] .

8. [24]

   At the conclusion of the cross examination, BVT was then questioned by the Senior Member. The questioning occupied seven pages of transcript. The bulk of the questions involved the Senior Member putting material to BVT based on the documentary material noted above. In this Court Counsel for BVT, Ms Stevens, relied on some parts of the transcript as supporting the apprehended bias ground. Thus, Ms Stevens referred to the following exchange between the Senior Member and BVT [11] :

9. [25]

   After this, the Senior Member took BVT through the documentary material referred to above and sought his response. This included the following exchange [12] :

10. [26]

    Ms Stevens contended that this was an example of the rigorous cross-examination conducted of BVT by the Senior Member.

11. [27]

    Section 46(1) of the NCAT Act enables NCAT to call a witness of its own motion as well as to examine and cross‑examine a witness. The legislative provisions governing NCAT are such that it can be described as a body falling somewhere between a “judicial model” and an “inquisitorial model” for an administrative body (see Italiano v Carbone [2005] NSWCA 177 at [104]ff per Basten JA; BKE at [65]). The necessity for such a body to afford procedural fairness may in some circumstances oblige it to notify a party such as BVT of its concerns about his evidence including by requesting that he attend for cross-examination (NCAT Act, s 38(2)). These statutory provisions form part of the context in which the hypothetical reasonable observer forms judgments about the impartiality or otherwise of the members who constitute NCAT.

12. [28]

    It follows that, of itself, the fact that the questioning of BVT by the Senior Member included vigorous questioning of the above kind does not give rise to an apprehension of bias. Equally, however, the fact that such questioning occurred and resulted in findings in BVT (No 1) are matters that the hypothetical reasonable observer is taken to be aware of in considering the position of the Senior Member prior to deciding BVT (No 3).

13. [29]

    Ms Stevens also referred to two further exchanges during the questioning of BVT. In the first, the Senior Member asked two questions of BVT which wrongly asserted that he had told the person who came to the victim’s assistance, Mr Masr, “If you say anymore I’ll kill you” [13] . However, Mr Masr’s statement suggests that it was he who said this to the offender and not vice versa [14] . In the other exchange the Senior Member’s question wrongly assumed that BVT had already “agreed” that if the assault was not “interrupted [he] would have either raped … or killed” the victim [15] . In his evidence BVT never stated that if the assault was not interrupted then he would have, or might have, killed the victim.

14. [30]

    Ms Steven’s written submissions contended that these questions were “improper” and that this impropriety somehow supported the claim of apprehended bias. The description “improper” was itself unjustified. The questioner simply made a mistake as to the effect of BVT’s previous answers. Such mistakes are not uncommon during cross examination. Beyond reinforcing the finding that the examination was rigorous these complaints do not add to the contention that, prior to the determination of BVT (No 3), there was a reasonable apprehension of bias.

15. [31]

    Two reports from a psychologist, Ms Hare, were tendered at the first hearing, one dated 2 September 2015 and the other dated 8 December 2015. Their contents were comprehensively summarised by Adamson J in [2016] NSWSC 1169 at [34] to [41]. In the first report, Ms Hare noted BVT’s expression of remorse for his offence and decision to alter his behaviour after he completed the non-parole period for the index offence [16] . Ms Hare also contrasted BVT’s personal circumstances at the time of the offending with those at the time of her assessment. Ms Hare concluded that BVT posed “an overall low risk of engaging in of sexually offending against a child” and that she was “unable to generate a realistic scenario that would, in [her] opinion, genuinely heighten the risk of [BVT] engaging in sexual offending towards a child in the future” [17] . Ms Hare also concluded that “… the risk to children’s safety that [BVT] presents are commensurate with the risk of any adult member of the community (i.e. a non-offender) harming a child” [18] .

16. [32]

    As noted by Adamson J [19] , in preparing her first report Ms Hare did not have access to the material from the Court file concerning the index offence but it was provided to her prior to her second report. Having received that material, Ms Hare qualified her assessment of BVT in a limited respect as follows:

17. [33]

    Ms Hare concluded that the material did not change her opinion regarding BVT’s “current risk and protective factors”. Ms Hare stated that she “remain[ed] of the opinion that [BVT] presently poses an overall low risk of engaging in sexual reoffending” [20] .

18. [34]

    In the first hearing, Ms Hare was cross-examined by Counsel for the Children’s Guardian during which she agreed that, to an extent, BVT had minimised his role in the index offence and said that was due to a number of factors including poor memory and ongoing “guilt and shame that he continues to carry for the offence”. [21] In relation to the narcissistic and anti-social traits referred to in the above passage from her second report, Ms Hare explained that those traits diminish as people such as BVT increase their “lifestyle stability” [22] . Ms Hare stated that with BVT “there’s still some narcissistic traits in there” but they were “not as prominent anymore” [23] . Ms Hare maintained her overall assessment of the risk that BVT posed as expressed in the above passages from her report [24] .

19. [35]

    The Senior Member then questioned Ms Hare. The transcript of the questioning occupies eight pages. In light of the findings made in BVT (No 1) and the reliance placed on this material by Counsel for BVT, it is necessary to set out some of the passages in full. In relation to the references to antisocial and personality traits in Ms Hare’s second report, the Senior Member asked as follows [25] :

20. [36]

    The Senior Member then questioned Ms Hare on the extract from Dr Robbie’s report noted above (at [22]) as follows [26] :

21. [37]

    Ms Hare answered this extended comment by disagreeing with the Senior Member’s interpretation of Dr Robbie’s report. Ms Hare stated that she understood Dr Robbie was “saying it was more of a superficial front that BVT was putting on that, you know, this doesn’t really affect him, when underneath he really did understand the effects” [27] .

22. [38]

    Counsel for BVT submitted that a reasonable observer would conclude from these questions that the Senior Member “may have formed the view that he was looking to disrupt [Ms Hare’s] opinion and put to her various old reports and ask her for comment in a way that was…one side[d]” [28] . I do not accept that submission. On their face, these questions are no more than the Senior Member raising what, at that time at least, may have been some preliminary views with Ms Hare to give Ms Hare (and BVT) the opportunity to respond.

23. [39]

    However, in light of the findings in BVT (No 1), these passages have relevance to a consideration of the perception of the reasonable bystander considering the position of the Senior Member prior to deciding BVT (No 3) in three respects. First, the bystander would note that during the first hearing the Senior Member was at least ruminating on the possibility that BVT’s present lack of memory of the events surrounding the offence was “convenient”, that is, not genuine. Second the bystander would note that the Senior Member expressed a concern about the presence of anti-social and narcissistic personality traits in BVT. These concerns were reiterated during the submissions of the parties [29] . Third, the bystander would note that Ms Hare steadfastly maintained her opinion of the low level of risk posed by BVT. Thus, Ms Hare said that his anti-social and narcissistic personality traits were “not prominent” [30] and that she stood by “what I had said previously that I believe his risk to children is commensurate with anyone else in the community” [31] .

BVT (No 1)

1. [40]

   The first part of the judgment in BVT (No 1) consists of an introduction, a brief statement of the sources of the evidence, the relevant legislation and the applicable principles. At [10], NCAT declared that “a statement contained in these reasons of factual matters is a finding of fact based upon the evidence referred to in these reasons”.

2. [41]

   The matters referred to in s 30 of the Working with Children Act were then addressed by NCAT commencing with the seriousness of the index offence (s 30(1(a)). In doing so NCAT made the following findings:

3. [42]

   The reasons then address the criteria in s 30(1)(b) to s 30(1)(h) before considering the criteria in s 30(1)(i), namely, the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition. This part of the decision includes a discussion of Ms Hare’s evidence and the report of Dr Robbie noted above. Although it is lengthy it is necessary to set out all the references to Ms Hare’s report and NCAT’s concluding paragraph in relation to this criteria:

4. [43]

   The reasons then addressed the criteria in ss 30(1)(j) and 30(1)(k). Next, in a section entitled “Consideration and determination”, NCAT found:

5. [44]

   As I will explain, the most significant part of the contention that an apprehension of bias arose in relation to the participation by the Senior Member in BVT (No 3) is that the reasons for decision in BVT (No 1) reveal a prejudgment by him of BVT’s remitted application. In that regard, four matters should be noted about what would be apparent to the reasonable observer from reading BVT (No 1).

6. [45]

   First, the observer would no doubt conclude that BVT was overall unsuccessful in demonstrating that he was not a risk to the safety of children. The observer would not only note that NCAT found that BVT failed to discharge the onus upon him, the observer would also note that NCAT positively found that he posed a risk to the safety of children [32] . NCAT also made a number of subsidiary findings to support those determinations including that he had not acknowledged the extent of his “past abusive behaviour” [33] , had not demonstrated a “sustained positive effort to address that behaviour” [34] , that he had a “lack of empathy for victims leading to the criminal events” [35] and had not demonstrated a “capacity to prevent repetition of these events to vulnerable victims” [36] .

7. [46]

   Second, it would be apparent to the observer that, to the extent that BVT described some of the circumstances of the index offence, his account was rejected by NCAT in favour of what was recorded in the police facts and the other witness statements. As noted below, Adamson J found that this finding was affected by legal error.

8. [47]

   Third, the reasonable observer would, or at least might, have concluded that NCAT did not accept that BVT was genuine in stating that he had a poor memory of the circumstances of the index offence. In his exchanges with Ms Hare during the first hearing the Senior Member referred to BVT displaying a “convenient lack of memory”. Twice in BVT (No 1), NCAT referred to the evidence “contradict[ing] the stated memory, or lack of memory” of BVT [37] . The reference to “stated memory” suggests a strong degree of scepticism as to whether BVT was stating his actual memory. Further, an asserted lack of memory can only be “contradict[ed]” if the evidence shows that the witness in fact could remember. In that event the “stated … lack of memory” would not be genuine.

9. [48]

   Fourth, the reasonable observer would have observed that NCAT did not refer to any aspect of Ms Hare’s reports that was favourable to BVT including her ultimate opinion about the risk he posed. As noted, throughout her reports and oral evidence Ms Hare maintained her opinion that BVT represented no greater risk to children than any other adult in the population. However, NCAT only emphasised those parts of her second report and oral evidence in which she mentioned “problematic personality traits”. Overall, a review of BVT (No 1) suggests that Ms Hare’s evidence was unfavourable to BVT whereas it was very favourable.

10. [49]

    The very selective use of Ms Hare’s evidence by NCAT was not the basis upon which Adamson J quashed the decision in BVT (No 1). Generally it was for NCAT to identify the evidence upon which it relied to base its findings in BVT (No 1). However, the effective disregarding of all the favourable aspects of Ms Hare’s evidence in BVT (No 1) bears upon the perception of the reasonable observer considering the position of the Senior Member prior to deciding BVT (No 3). If the Senior Member had previously disregarded the favourable aspects of Ms Hare’s evidence when determining BVT (No 1) and presented her evidence as though it was unfavourable to BVT then the observer might be concerned that the Senior Member would not consider those favourable aspects when deciding BVT’s remitted application.

[2016] NSWSC 1169

1. [50]

   In setting aside the decision in BVT (No 1), Adamson J found that three grounds of judicial review were made out but rejected a fourth.

2. [51]

   First her Honour found that the findings in BVT (No 1) at [38] and [42] were based on a misapprehension of the effect of BVT’s plea of guilty [38] . Her Honour found that, in those paragraphs of BVT (No 1), NCAT elevated the police facts and witness statements to the “status of findings by the sentencing judge and admissions made by the plaintiff” [39] .

3. [52]

   Second, Adamson J found that NCAT erred in law in finding in BVT (No 1) at [94] that it had “been provided with an account of the offending behaviour which led to the applicant becoming a disqualified person which is significantly different to the actual facts which occurred, as found by the sentencing Court” given that there was not material before NCAT demonstrating what was found by the sentencing Court [40] .

4. [53]

   Third, Adamson J found that NCAT did not discharge its duty to provide reasons in relation to its finding that BVT had not demonstrated that he does not pose a risk to children [41] and found that he did pose a risk to children [42] . Although her Honour accepted that NCAT’s reasons were “detailed and address each of the relevant statutory factors”, her Honour found that they did not “explain why the considerable length of time since the index offending; [BVT’s] youth and intoxication at the time; his extended period of non-offending; and his prolonged sobriety, were insufficient to discharge the onus” [43] .

5. [54]

   Fourth, her Honour rejected a contention that the Tribunal’s decision was unreasonable [44] .

6. [55]

   In concluding that relief should be granted, Adamson J found that NCAT’s assessment of BVT’s “credibility and acknowledgment of guilt of the offence in 1973 appears to have been substantially influenced by the error[s]” the subject of the first two grounds of review [45] .

BVT (No 2)

1. [56]

   As noted above, after the proceedings were remitted to NCAT the matter was referred to the Senior Member and a different general member. BVT applied for the Senior Member to disqualify herself. The application was refused (BVT (No 2)).

2. [57]

   In BVT (No 2) the Senior Member stated that, in BVT (No 1), BVT’s “application was refused on the basis that the applicant had failed to discharge the onus to prove that he is not a risk to children” (BVT (No 2) at [2]). However, as noted, in BVT (No 1) NCAT did not just find that BVT failed to discharge that onus, it positively found that he “pose[d] a risk to the safety of children” [46] . In BVT (No 2), the Senior Member then referred to the judgment of Adamson J in [2016] NSWSC 1196 and the principles governing bias applications. The Senior Member noted BVT’s submission that in BVT (No 1) NCAT made an adverse finding about BVT’s credibility. The Senior Member rejected this submission stating:

3. [58]

   Three related matters should be noted about these passages.

4. [59]

   First, in BVT (No 2) at [22] the Senior Member stated that it is “not correct to say that the disqualified person’s credibility was affected by the error in relation to the plea of guilty”. This is directly contrary to the finding of Adamson J in [2016] NSWSC 1169 at [84] that, NCAT’s finding about BVT’s credibility was “substantially influenced” by that error.

5. [60]

   Second, contrary to the second emphasised portion of [22], nothing in BVT (No 1) postulates that BVT “could not properly remember the events” because of the possibility that “he did not want to recall the events due to a sense of shame or unconcern”. Instead, in BVT (No 1) NCAT only noted BVT’s statements that he could not recall because he was drunk at the time of the index offence (and the passage of time) and, for the reasons noted above, suggested that his lack of recollection was somehow contradicted. Further, the possibility that BVT “did not want to recall the events due to a sense of shame or unconcern” is not an explanation for why BVT “could not properly remember the events”. To the contrary that is only a possible explanation for why BVT may have been feigning an absence of recollection of events.

6. [61]

   Third, this problem is exemplified by BVT (No 2) at [26]. The reference to “inconsistent” in that paragraph is to the inconsistencies identified by Ms Hare. With respect to the Senior Member, there is a significant difference between identifying inconsistencies between the material in the Court file and BVT’s recollection as Ms Hare did on the one hand and concluding that it contradicts a stated “lack of memory” as NCAT found on the other. The latter raises an issue about the honesty of a witness, the former does not necessarily do so.

BVT (No 3)

1. [62]

   The hearing before NCAT after the remittal ordered by Adamson J was brief. The Children’s Guardian neither consented to nor opposed the application for an enabling order. BVT, his partner and Ms Hare gave further oral evidence. The evidence of BVT and his partner was principally concerned with C, a topic that was not addressed in either of BVT (No 1) or BVT (No 3). The Senior Member did not ask BVT or Ms Hare any questions, instead stating that he had asked all the questions he needed to “ask last time” [47] .

2. [63]

   In BVT (No 3), NCAT described the background to the application, including the judgment of Adamson J. It then set out a brief statement of the sources of the evidence, the relevant legislation and the applicable principles. At [13], NCAT again stated that “a statement contained in these reasons of factual matters is a finding of fact based upon the evidence referred to in these reasons”. As in BVT (No 1), NCAT then addressed the matters referred to in s 30 of the Working with Children Act commencing with the seriousness of the index offence (s 30(1(a)). Consistent with the judgment of Adamson J, NCAT found that “on the balance of probabilities … the victim’s statement of events is the more probable version of what actually occurred” [48] and otherwise noted that BVT “gave Ms Hare an account inconsistent with the facts which the Tribunal has found more probable” [49] .

3. [64]

   NCAT then addressed the criteria in s 30(1)(b) to s 30(1)(h) and the criteria in s 30(1)(i), namely, the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition. NCAT referred to Ms Hare’s evidence and the report of Dr Robbie noted above. In referring to Ms Hare’s evidence, NCAT set out the passages from her evidence extracted in BVT (No 1) at [67] and [68] (see [43] above) [50] .

4. [65]

   NCAT then noted that there had not been any additional psychiatric assessment since BVT (No 1)” [51] and that BVT had “limited insight into the effects of his behaviours and has a limit to his capacity to gain insight.” NCAT opined that until “there is an acknowledgement of the extent of the past abusive behaviour and sustained positive effort to address that behaviour and its causes, it [was] the assessment of [NCAT] that the likelihood of a repetition of that behaviour is significant because the risk of the trigger for that type of aggressive behaviour is not identified and the applicant cannot provide evidence to [NCAT] that it will not be likely to reoccur” [52] . NCAT then referred to a number of cases that it contended support that proposition namely, SL v Secretary, Department of Family and Community Services [2016] NSWCA 124 (“SL”); T v H [1985] NSWSC, Unreported 19/12/1985; SS v Department of Human Services (NSW) [2010] 12 DCLR(NSW) 29; [2010] NSWDC 279 at [111] to [114]; BHY v Children’s Guardian [2015] NSWCATAD 91 [53] . This was curious as Adamson J carefully explained that the latter three of these cases were irrelevant to BVT’s case [54] . SL is similarly irrelevant as it concerned an assessment of risk to a child where there was an absence of explanation for how that child had previously been injured.

5. [66]

   NCAT then noted, for the first time, Ms Hare’s ultimate opinion that BVT’s risk “to children’s safety is commensurate with the risk of any adult member of the community”. However, NCAT stated that it preferred the “STATIC-99 actuarial risk assessment tool” [55] . NCAT referred to BVT’s “antisocial and narcissistic personality traits” which presently have “decreasing prominence” but noted that they nonetheless remain [56] .

6. [67]

   Under the heading “Consideration and Determination”, NCAT sought to address the finding by Adamson J that inadequate reasons were provided in BVT (No 1) [57] . NCAT referred to four matters noted by her Honour which “could lead to an inference of successful rehabilitation” namely the time since the index offence, BVT’s youth and intoxication at the time of the offence, the extended period in which he had not offended and his prolonged period of sobriety [58] . NCAT then stated [59] :

7. [68]

   Later in its reasons NCAT referred to “a lack of evidence of mitigating factors such as examination of the reasons for the offending behaviour or the development of insight into his behaviour” [60] . In a passage of relevance to ground 3 of the application, NCAT stated [61] :

8. [69]

   NCAT concluded by making findings in identical terms to those in BVT (No 1) at [99] to [100] set out above [62] . (Although its relevance to the grounds of review is not obvious, Counsel for BVT identified 15 paragraphs in BVT (No 3) that are virtually identical to a corresponding paragraph in BVT (No 1) [63] .)

Ground 4: Apprehended Bias

1. [70]

   Ms Stevens contended that the decision in BVT (No 3) is affected by an apprehension of bias on the part of the Senior Member. As noted, in determining BVT (No 3), NCAT was constituted by the Senior Member and a general member who had not participated in the first hearing or the determination of BVT (No 1). I have explained the provisions concerning the constitution of NCAT in [11] to [12] above. Where there are only two members who constitute NCAT, one of whom is affected by an apprehension of bias, and they produce a joint decision then it can be safely concluded that the decision is relevantly affected by any form of bias on the part of the Senior Member without any need to speculate about the possibility of the Senior Member having played any role in the general member’s deliberations (see Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 at [48] per Kiefel, Bell, Keane and Nettle JJ; “Isbester”; McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504 at 511; [2008] NSWCA 209 per Spigleman CJ; cf 523 per Basten JA and IW v City of Perth (1997) 191 CLR 1; [1997] HCA 30 at 50 to 51 per Gummow J). Any consideration of the history of the proceedings undertaken to infer what might have been the Senior Member’s role in the general member’s deliberations, would only strengthen that conclusion (see Isbester at [61] per Gageler J).

2. [71]

   To establish apprehended bias it must be shown that a “fair-minded lay observer” might reasonably apprehend that the judge or tribunal member might not bring an impartial mind to the resolution of the question the judge or tribunal member is required to decide (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 237; [2000] HCA 63 at [6]; “Ebner”). In this case the relevant apprehension is said to arise from prejudgment, that is by reason of the Senior Member’s comments during the first hearing as well as the findings in BVT (No 1), BVT (No 2) and, to the extent permissible BVT (No 3), the ordinary reasonable observer might reasonably apprehend that the Senior Member might not be open to persuasion to make a different finding on BVT’s application following the remittal of the matter pursuant to the orders of Adamson J (British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2 at [104] per Heydon, Kiefel and Bell JJ; “BAT v Laurie”).

3. [72]

   An allegation of apprehended bias does not allow consideration of whether the judge or tribunal member has in fact prejudged the issue (Michael Wilson & Partners v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [67]; “Michael Wilson Partners”). It follows that the purported reliance by BVT on the findings in BVT (No 3) to determine or even confirm any apprehension of bias was impermissible (Michael Wilson Partners at [68]). Such an approach might have been permissible if actual bias was alleged but it was not (Michael Wilson Partners at [67]). In her oral submissions in reply, Ms Stevens did not press for any reliance on the findings in BVT (No 3) [64] .

4. [73]

   The application of the double might test noted in [71] involves two steps. The first step is to identify what it is said might lead a judge (or tribunal member) to decide a case other than on its legal and factual merits. The second step is to articulate the logical connection between the matter and the “feared deviation from the course of deciding the case on its merits” (Ebner at [8]).

5. [74]

   With the first step in Ebner, the matter(s) that are said to lead to the conclusion that the Senior Member might not decide the case other than on its legal and factual merits are the comments and the findings made or joined in by the Senior Member prior to BVT (No 3) which were said to relate to matters to be determined in BVT (No 3). With the second step, the existence of a logical connection between previous findings of a judge or tribunal member on the one hand and the “feared deviation from the course of deciding the case on its merits” on the other has often been accepted although it depends on the context, nature and terms of such findings (and any associated commentary during any hearing that preceded those findings): see Livesey v The New South Wales Bar Association (1983) 151 CLR 288; [1983] HCA 17 (“Livesey”) and BAT v Laurie.

6. [75]

   Thus, in Livesey, Mason, Murphy, Brennan, Deane and Dawson JJ held (at 300) that “a fair-minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact”. In Livesey, the High Court held that two members of the Court of Appeal should not have heard Mr Livesey’s application to be admitted as a barrister. In different proceedings concerning another person seeking admission, those judges found that Mr Livesey had participated in a corrupt arrangement and made adverse credit findings against that other person who could have been a witness in Mr Livesey’s proceedings (at 300).

7. [76]

   In Livesey, the previous findings of the Court of Appeal that gave rise to the apprehension of prejudgment in the case before it were final. However, they were made in proceedings between different parties so that it was possible that further evidence might have been available to warrant their reconsideration in determining Mr Livesey’s application. In BAT v Laurie, Heydon, Kiefel and Bell JJ found that an apprehension of bias arose from an interlocutory finding made by the judge in other proceedings that a party had engaged in fraud and the same issue in respect of that party arose for determination in the current proceedings (at [145]; cf French CJ and Gummow J). According to Heydon, Kiefel and Bell JJ, although the reasonable observer would have noted the judge’s acknowledgement that the evidentiary position might alter when the matter fell for reconsideration, the reasonable observer would have also noted that (at [143]):

8. [77]

   I have set out above the comments made during the first hearing and the findings in BVT (No 1). Although they were later set aside, the findings made in BVT (No 1) were intended to be final. Unlike the finding considered in BAT v Laurie, nothing in BVT (No 1) suggests that the Senior Member contemplated that he would or even could revisit them at a later time even if further evidence was available.

9. [78]

   Further, to use the language of Livesey, the findings made by the Senior Member in BVT (No 1) concerned both “a live and significant issue in the subsequent case” being the redetermination of BVT’s application and the “credit of a witness” namely BVT himself. With the latter, for the reasons explained above and as found by Adamson J in [2016] NSWSC 1196 at [84], in BVT (No 1) the Senior Member did make findings adverse to BVT’s credit.

10. [79]

    With the former, in BVT (No 1) the Senior Member did not just conclude that BVT had not discharged the onus of s 28(7) of the Working with Children Act of proving that he was not a risk to children. As stated, the Senior Member positively found that BVT “posed a danger to children” (BVT No 1) at [100]). This finding did not merely concern a “live issue” in the rehearing, it was a finding that, if sustained, foreclosed BVT from any possibility of succeeding. In BVT (No 1) the Senior Member also made other findings adverse to BVT all of which were of significance to the rehearing of BVT’s application (see [45]). Further, the conclusion that the Senior Member might not be open to persuasion to a different ultimate conclusion than that reached in BVT (No 1) is reinforced by the manner in which the Senior Member treated the evidence of Ms Hare.

11. [80]

    In his written submissions, Counsel for the Children’s Guardian, Mr Harris, contended that, inter alia, the passage from BVT (No 1) at [46] set out above (at [41]) did not constitute a “finding” notwithstanding the statement in BVT (No 1) at [10]. It was also contended that, in BVT (No 1), the Senior Member “did not embark on an assessment” of BVT’s evidence but instead acted on the basis that it was bound to accept the police facts as proven factual circumstances and assessed the seriousness of the [index] offence on the basis of the police facts alone” [65] . It was further submitted that the finding in BVT (No 1) at [46] and various other findings in BVT (No 1) rejecting aspects of BVT’s account were not “live and significant issues” for BVT (No 3) and nor was the “seriousness of the offence” given that both parties accepted that the index offence was heinous [66] . It was also submitted that the Senior Member did not express any “clear view” on BVT’s credit and the references to his being an “inconsistent historian” and his account being contradicted were stated “in the context that the Tribunal was not evaluating [BVT’s evidence], where it had no reason to do so” because of the (erroneous) approach it took the police facts [67] .

12. [81]

    These contentions are addressed by the above analysis. The principal difficulty with the finding in BVT (No 1) at [46] is the suggestion that the evidence contradicted BVT’s “stated … lack of memory”. When that is considered with the Senior Member’s comments during the first hearing, it is clear that the Senior Member rejected BVT’s credit. While that rejection was “substantially affected” by the error of law found by Adamson J [68] , I do not accept that a reasonable observer would concluded that it was solely based on that error. Even if they did, the observer might still apprehend that the Senior Member might not be open to persuasion that BVT was a credible witness at any rehearing. Otherwise, Mr Harris’ submissions do not address the effect on the reasonable observer of the positive finding in BVT (No 1) that BVT posed a risk to children nor the other findings noted in [45] and the treatment of Ms Hare’s evidence.

13. [82]

    There remains to be considered the effect of BVT (No 2) on any apprehension of the reasonable observer especially the Senior Member’s assertion that he did not make any adverse credibility finding against BVT in BVT (No 1). Depending on the circumstances, a judge or tribunal member may be able to dispel an apprehension of bias that might otherwise arise from their previous statements or conduct by making a later statement (Johnson v Johnson at [14]). A later statement which clarifies or resolves some ambiguity arising from earlier conduct is likely to have that effect. However a subsequent statement which incorrectly characterises the earlier conduct will not (BAT v Laurie at [138]). The effect of the statements in BVT (No 2) on the reasonable observer is addressed in [59] to [61]. It follows from that analysis that BVT (No 2) did not dispel any apprehension that would arise in the reasonable observer from observing the first hearing and reading BVT (No 1).

14. [83]

    Ground 4 is made out.

Grounds 3 and 5: Alleged Irrelevant Considerations and Procedural Fairness

1. [84]

   Ground 3 of the Amended Summons contends that in determining BVT (No 3) NCAT “erred in taking into account an irrelevant consideration namely that [BVT] had not engaged in pro‑social behaviours and altruistic broader social pursuits”. Ground 5 contends that NCAT denied BVT procedural fairness. As both concern NCAT’s reliance on the supposed absence of pro‑social behaviour of BVT they can be dealt with together.

2. [85]

   Ground 3 refers to the passage from BVT (No 3) at [108] set out in [68] above. The passage is found in a section of the decision entitled “consideration and determination”. It forms part of NCAT’s assessment of the changes in and affecting BVT since he committed the index offence. The assessment was significant to its overall assessment of whether BVT had discharged the onus of proving that he was not a risk to children.

3. [86]

   The written submissions lodged on behalf of BVT in support of ground 3 also address the alleged failure to provide adequate reasons. In relation to this ground, the submissions went no higher than asserting that the possibility of engaging in pro-social behaviours such as volunteering or “altruistic … social pursuits” was irrelevant to the personal circumstances of BVT [69] . Accepting that contention for the present, that has no significance to the alleged ground of review which requires a conclusion that, as a matter of construction, the Working with Children Act forbids having regard to the absence of an applicant’s pro-social or altruistic behaviours (Ballantyne v Workcover Authority of NSW [2007] 5 DDCR 97; [2007] NSWCA 239 at [113] per Basten JA). Such an argument was not attempted. I am unable to discern anything in the Working with Children Act that warrants that conclusion.

4. [87]

   Ground 3 is not made out.

5. [88]

   As best as I can discern, the only complaint the subject of ground 5 is that NCAT relied on the absence of pro‑social behaviours and failure to pursue “other altruistic broader social pursuits” since he committed the index offence in determining that BVT either posed a risk or failed to prove he was not a risk when neither he nor his Counsel were ever given any notice of such reliance. This is the basis upon which the Children’s Guardian approached ground 5 [70] . I will do likewise.

6. [89]

   Mr Harris did not dispute that the subject matter of “pro‑social behaviour”, “volunteering” or “altruistic behaviours” was not raised in any of the hearings or submissions before NCAT. His written submissions referred to the statement by French CJ and Kiefel J in Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 at [9] (“SZGUR”) to the effect that NCAT was not required to “expose [its] thought processes or provisional views for comments before making the decision” [71] . However, that statement was made in the context of a complaint that the decision maker had not advised a party of “inconsistencies” and “contradictions” in their testimony (at [9]). The full statement of the requirements of procedural fairness made by their Honours in SZGUR was (at [9]):

7. [90]

   To similar effect, in Waqa v Technical and Further Education Commission [2009] NSWCA 213 Basten JA stated (at [55]):

8. [91]

   As stated, the context in which NCAT considered the apparent absence of pro‑social behaviours on the part of BVT was as part of its determination of the level of ongoing risk he poses in light of his commission of the index offence more than 43 years ago. Given the seriousness of the index offence, the extremely long passage of time since it or any other offence was committed by BVT, and BVT’s personal circumstances, the reference to an apparent absence of pro‑social behaviours on his part as a matter of significance was surprising to say the least. It was certainly a matter that BVT and his legal advisors “could not reasonably have been expected to provide information about” and was a matter “that [they could] reasonably perceived as irrelevant to his situation” (Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22 at [142]).

9. [92]

   Two further matters should be noted about this ground. The first concerns the potential for BVT to have responded had the topic of the apparent absence of any pro‑social behaviours on his part been raised with him. In this case, NCAT positively found that BVT had not engaged in “pro‑social behaviours” including volunteering or other “altruistic” endeavours. As noted, this was never raised with BVT or his legal representatives. The basis upon which NCAT could make that finding is not apparent. Ms Stevens pointed out that the finding ignores the significant support that BVT has provided to his partner, her daughter who had an intellectual disability and then suffered from a terminal illness and his step‑granddaughter. Ms Stevens also submitted that [72] :

10. [93]

    The significance of this contention is that it is a matter that could have been put to NCAT had it raised the topic of pro‑social behaviours with BVT or his representatives.

11. [94]

    The second matter concerns the significance of this issue to NCAT’s decision. On the one hand this issue represents only three lines of reasoning in a decision that has 112 paragraphs. However, they are stated in a context where BVT’s application was very strong but NCAT nevertheless found he poses a risk to children in light of an (albeit serious) offence committed against an adult over 43 years prior to the decision with no offending since the early 1980’s. In those circumstances it cannot be concluded that NCAT’s ultimate decision was not affected by NCAT’s reliance on the (alleged) absence of pro‑social behaviours. Put another way, if procedural fairness had been afforded it might have yielded a different result (Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 at [43] (per Kiefel, Bell and Keane JJ).

12. [95]

    Ground 5 is made out.

Ground 2: Adequacy of Reasons

1. [96]

   Ground 2 contends that NCAT “erred in that it gave inadequate reasons for finding that [BVT] had not shown that there was sufficient evidence of successful rehabilitation”.

2. [97]

   Section 62(3) of the NCAT Act obliged NCAT to provide a written statement of reasons setting out “(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based”, “(b) the Tribunal’s understanding of the applicable law”, and “(c) the reasoning processes that led the Tribunal to the conclusions it made”. A failure to comply with an obligation to provide reasons will constitute an error of law (Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [55]; “Wingfoot”).

3. [98]

   It has been held that, if a statute imposes a duty on an administrative tribunal to provide reasons, then “it is appropriate to apply the rules - and, in particular, the rules relating to the giving of reasons - which are ordinarily to be regarded as an incident of the judicial process” (Absolon v NSW TAFE [1999] NSWCA 311 at [66] per Powell JA). Even so, three related limits on the obligation to provide reasons should be noted.

4. [99]

   The first is that the obligation to provide reasons is primarily directed to facilitating a party’s appeal rights such that if an appeal is limited to points of law the obligation to provide reasons for findings of fact is limited (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 273A per Mahoney JA and 280G per McHugh JA). Thus, in Wingfoot at [55] the High Court explained that the reasons “must explain the actual path of reasoning” of the decision maker and must do so “in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law”.

5. [100]

   The second is that an allegation of a failure to provide adequate reasons is not established by pointing to matters raised by a party that were said to be not addressed by the decision maker. Instead, as explained by Basten JA in Insurance Australia Ltd t/a NRMA Insurance v Milton [2016] NSWCA 156 at [8] to [10], such complaints may involve a failure to afford procedural fairness, a failure to take into account relevant considerations or a constructive failure to exercise jurisdiction.

6. [101]

   Third, where the ultimate conclusion of the decision maker involves an “evaluative judgment, it may well not be practicable to provide a detailed articulation as to how specified (and conflicting) factors have been weighed in the balance” (Public Service Association and Professional Officers’ Association Amalgamated Union (NSW) v Secretary of the Treasury [2014] NSWCA 112 at [46] per Basten JA (“Public Service Association v Secretary of the Treasury”).

7. [102]

   The written submissions in support of this ground identify a number of matters that, it is said, NCAT did not address or did not adequately address including BVT’s plea of guilty [73] and whether NCAT accepted that BVT was remorseful [74] . The written submissions complain that NCAT again referred to the decisions that Adamson J explained were irrelevant [75] . It is also contended that a finding by NCAT that BVT did not “engage emotionally” and “exhibit[ed] unconcern for the offence” was “vague and not supported by any reference to the evidence” [76] . It follows from [100] that these are not complaints about the adequacy of the reasons.

8. [103]

   In the end result, there were two main complaints about NCAT’s reasons. The first complaint concerned Ms Hare’s evidence. It was submitted that NCAT failed to explain why it rejected Ms Hare’s evidence [77] . As noted, unlike BVT (No 1), in BVT (No 3) NCAT noted Ms Hare’s overall opinion concerning the risk posed by BVT. However it also stated that the risk was for it to assess. It is apparent that, unlike Ms Hare, NCAT placed significant reliance on the anti‑social personality traits that it considered BVT still possessed and on the Static 99-R model. Ms Hare explained her reasons for placing lesser weight on that but NCAT was not obliged to deal with every aspect of her evidence. Thus, NCAT’s “actual path of reasoning” on this issue can be discerned. It departed from Ms Hare’s assessment because it placed far greater weight on the Static 99-R assessment and BVT’s supposed anti-personality traits than Ms Hare. This was sufficient to discharge NCAT’s obligation to provide reasons.

9. [104]

   The second main complaint concerns NCAT’s ultimate conclusion. NCAT’s finding that BVT had not discharged the onus on him was an evaluative judgment of the kind referred to by Basten JA in Public Service Association v Secretary of the Treasury. In its reasons at BVT (No 3) at [108], NCAT stated it was not satisfied that BVT had sufficiently reformed in the more than 43 years since he committed the index offence to discharge the onus. Although that conclusion appears dubious, the “actual path of reasoning” that led to NCAT’s lack of satisfaction is apparent.

10. [105]

    Ground 2 is not made out.

Appeal from BVT (No 2)

1. [106]

   As stated, to the extent necessary, BVT sought leave to appeal from the “decision” in BVT (No 2). This was not opposed by the Children’s Guardian. However, the decision in BVT (No 2) has effectively been superseded in that the only effect of BVT (No 2) was that the Senior Member determined to hear and decide BVT’s application. The application has now been determined and the issue of apprehended bias has been litigated (successfully) in an appeal from BVT (No 3). In those circumstances there is no utility in separately considering whether the “decision” in BVT (No 2) should be set aside or not. To reflect this, the decision in BVT (No 3) will be set aside, an order will be made requiring BVT’s application to be re‑determined, and the amended summons will be otherwise dismissed.

2. [107]

   I note that the question of whether BVT (No 2) can be appealed under the NCAT Act and, if so, whether leave is required is not free from doubt. For the sake of completeness and to at least explain the basis upon which BVT’s amended summons will be otherwise dismissed, I will note the statutory provisions. I was not referred to any decisions concerning this issue.

3. [108]

   Absent Schedule 3 of the Working with Children Act, the parties appeal rights would arguably be governed by s 83(1) of the NCAT Act which provides that a “party to an external appeal …. may, with the leave of the Supreme Court, appeal on a question of law to the Court against any decision made by [NCAT] in the proceedings.” An “external appeal” is an appeal to NCAT against an “appealable external decision” which in turn is defined as a “decision” of “external decision maker” over which NCAT has “external appeal jurisdiction” (NCAT Act, ss 31(3) and 31(4)). NCAT has “external appeal jurisdiction” over a decision made by an “external decision maker” if legislation “provides that an appeal may be made to [NCAT] against any such decision (or class of decisions)” (NCAT Act, s 31(1)). Section 27(1) of the Working with Children Act provides for a right of “administrative review” under the Administrative Decisions Review Act 1997 to NCAT from a decision to refuse a working with children clearance certificate. This would appear to meet the definition of an “appeal” under s 31(1) of the NCAT Act. However, s 28(1) of the Working with Children Act empowers NCAT to make an enabling order. A free standing application made to NCAT for such an order would not appear to fall within s 31(1) although s 31(1) might be engaged if, during an administrative review under s 27(1), NCAT’s power under s 28(1) was sought to be invoked.

4. [109]

   However, most of the problems raised by the application of these provisions to the Working with Children Act are avoided by Schedule 3 of the NCAT Act. As noted, cl 17(1) of Schedule 3 to the NCAT Act confers a right of appeal on a party on a question of law against a “Division decision for the purposes” of the Working with Children Act. A “Division decision” is defined to mean a “decision of [NCAT] in exercise of a Division function” (Schedule 3, clause 1). A “Division function” is defined to mean a “function of [NCAT] allocated to the Division” by Schedule 3 (Schedule 3, clause 1). The “Division” is the Administrative and Equal Opportunity Division of NCAT (Schedule 3, clause 1).

5. [110]

   Some guide to the scope of what might be meant by a “Division function” is the definition of "substantive Division function" in cl 1 of Schedule 3. A “Substantive Decision function” is defined to mean “a Division function other than: (a) a Division function exercised in connection with the making of an ancillary or interlocutory decision of [NCAT] or (b) a Division function exercised by a Registrar”. Sections 4 to 8 of Schedule 3 specify certain requirements for the constitution of NCAT for the exercise of substantive Decision functions in relation to particular legislation. On its face the definition of “substantive Division function” suggests that the making of an interlocutory decision in relation to an application under the Working with Children Act is a “Division decision” under cl 17(1) of Schedule 3. If so, then that is surprising. It is very unusual for an administrative review scheme to confer a right of appeal from interlocutory decisions to a Court.

6. [111]

   Three issues arise from these provisions in relation to BVT’s attempt to “appeal” the Senior Member’s refusal to recuse himself in BVT (No 2). The first issue is whether a bare refusal not followed by any other order amounts to a “decision” for the purposes of any of the above provisions. The only operative effect of BVT (No 2) is that the Senior Member continued to hear BVT’s application. Such a determination may constitute “refusing to do any other act or thing” (NCAT Act, s 5(1)(g)). However, it did not amount to refusal to take some step or action under a statutory scheme (cf NCAT Act, s 5(2)(c); see Australian Broadcasting Tribunal v Bond (1990)170 CLR 321; [1990] HCA 33 at 337 per Mason J; Barton v Walker [1979] 2 NSWLR 740; Michael Wilson Partners at [81] to [82]).

7. [112]

   If BVT (No 2) did not record the making of a “decision” then the refusal of a NCAT member to disqualify themselves could be the subject of an application for relief in lieu of a writ of prohibition under s 69(1) of the Supreme Court Act 1970 (NSW) if the member was joined as a party. In circumstances where the relevant member has proceeded to make a decision, such as BVT (No 3), and that is the subject of an appeal on the grounds of apprehended bias, then any such relief ought to be refused as a matter of discretion.

8. [113]

   The second issue is whether, even if BVT (No 2) does record a “decision”, does the Senior Member’s refusal to recuse himself in a proceeding under the Working with Children Act involve the exercise of a “Division function” such that BVT has an appeal as of right against the decision under cl 17(1) of Schedule 3 to the NCAT Act. Even if that is the case, then cl 17(2) of Schedule 3 confirms that the Court’s power to grant relief is discretionary. Again, where the interlocutory decision has been overtaken by a final decision then it is appropriate to refuse relief on discretionary grounds. If no appeal from an interlocutory decision is available under cl 17(1) then the only other means of appealing to the Court under the NCAT Act is under s 83(1). If that provision was available it would be appropriate to refuse leave to appeal from BVT (No 2) given that it has been overtaken by BVT (No 3).

9. [114]

   The third issue is whether a decision of the Senior Member to refuse to recuse himself is a decision “of [NCAT]” or “by [NCAT]” for the purposes of the above provisions. As noted, NCAT was constituted by two members for the purposes of determining BVT’s remitted application and it is not known whether it was reconstituted by a single member for the purposes of determining the recusal application. If it was not, then in theory relief under s 69 of the Supreme Court Act would be available if the Senior Member was joined.

Relief

1. [115]

   It follows that BVT has established grounds 4 and 5 and is entitled to relief setting aside BVT (No 3) and remitting BVT’s application for determination according to law. The amended summons will be otherwise dismissed. It also follows that the Senior Member will be unable to hear that application. No argument was directed to the general member who decided BVT (No 3) but the same result would appear to follow. I will also order that the Children’s Guardian pay BVT’s costs of the proceedings. If either party seeks to contend for some different costs order they can make an appropriate application within the time provided for in Uniform Civil Procedure Rules 2005, r 36.16(3A).

2. [116]

   Accordingly, the Court orders that: