CCC v Office of the Children’s Guardian (No 2)

The plaintiff seeks judicial review of a decision made by the Office of the Children’s Guardian (the defendant) by which the plaintiff was denied a clearance to work with children. He also seeks declaratory relief and an order to “strike out” review proceedings brought by him in the NSW Civil and Administrative Tribunal (NCAT). This relief is sought by summons filed on 27 April 2015. By notice of motion filed 11 May 2015, the defendant seeks an order that the summons be summarily dismissed.

The issue is whether the summons represents an abuse of the Court’s process or discloses no reasonable cause of action. If one or other of those propositions is established, the defendant is entitled to the order for summary dismissal.

The matter was argued before me on 25 May 2015. The defendant was represented by counsel while the plaintiff’s wife spoke on his behalf. Both parties provided written submissions.

Pursuant to orders made by Beech-Jones J on 27 April 2015, the plaintiff will continue to be referred to by the pseudonym “CCC”: CCC v Office of the Children’s Guardian [2015] NSWSC 471.

I have reached the conclusion that the summons should be dismissed because it discloses no reasonable cause of action. A number of arguments made on the hearing and in the written submissions raised matters of a more fundamental nature. Those matters, which are not on their face directly related to the orders sought in the summons, can properly be subject to full argument before NCAT in the proceedings brought by the plaintiff pursuant to his statutory right of appeal under s 27 Child Protection (Working with Children) Act 2012 (NSW) (WWC Act). If dissatisfied with the decision of NCAT, either party can appeal to this Court on a question of law: Civil and Administrative Tribunal Act 2013 (NSW), Schedule 3 clause 17.

At the hearing of the motion for dismissal, the defendant read an affidavit of David Rees and two affidavits of Paul Armstrong while the plaintiff read his own affidavit. No objection was taken to the evidence and there was no cross-examination of the deponents. From the affidavit evidence and the annexures exhibited thereto, the factual context of the current dispute emerges.

On 13 May 2014, the plaintiff applied for a Working with Children Check Clearance under s 13 of the WWC Act. At that time, the plaintiff stood charged with offences of sexual assault (s 61L Crimes Act 1900 (NSW)) (5 counts) and aggravated sexual assault (s 61J Crimes Act). While these allegations did not involve children and had not been proved, the nature of the pending charges meant that the plaintiff was a disqualified person under s 18(1)(b) of the WWC Act. On 17 July 2014 the plaintiff was notified that he was a disqualified person and that the clearance had been refused.

The sexual assault offences were listed for trial on 10 November 2014 and the trial was ready to commence on 13 November. However, on that date the Crown Prosecutor advised the plaintiff’s lawyers that the charges were to be withdrawn. Accordingly, the charges were dismissed by the District Court (Judge Colefax SC) on 13 November 2014.

The plaintiff was no longer a disqualified person. However, s 14 (read with Schedules 1.1(1)(a) and 2.1(1)(e)) meant that the plaintiff was subject to an “assessment requirement” and that the defendant was required to undertake a risk assessment. In the meantime, the defendant became aware that the plaintiff had been charged in 2007 with offences of indecent assault (2 counts) and unlawful sexual intercourse with a person under 12 when he was a resident of South Australia. It should immediately be noted that, like the 2014 New South Wales charges, the South Australian offences were never proved. They were subject to a “nolle prosequi” by the South Australia prosecuting authority.

On 18 December 2014 the defendant sent two letters to the plaintiff. The first notified him of the risk assessment and requested that he provide information to assist in the risk assessment process (s 16 WWC Act). The second letter notified the plaintiff that he was subject to an interim bar on engaging in child-related work pursuant to s 17.

According to the defendant’s evidence, a risk assessment was then conducted. I infer that the plaintiff disputes that the assessment was conducted according to law and, in any event, contends that the outcome of the assessment was wrong. In view of the proceedings before NCAT, it is undesirable to go into the details but the defendant gathered information concerning the charges which had been dismissed in New South Wales and South Australia as well as information from relevant authorities in both of those states. Some of that material is before me, and all of it will be before NCAT if the matter proceeds there. The material includes reasons why the two sets of charges were discontinued, the nature of the allegations as well as material from the Department of Family and Community Services and intelligence reports from the South Australian Police Force.

By 6 March 2015 a risk assessor concluded her assessment and recommended the refusal of the plaintiff’s application for a clearance. A “team leader” and “Case Review Panel” agreed with the assessment and an internal document was ultimately signed by the Director of the defendant.

Section 19 of the WWC Act required that, if the defendant proposed not to grant the clearance, the person affected by that decision must be notified and given the opportunity to make a submission. Accordingly, on 12 March 2015 the defendant sent a notice in accordance with s 19. The plaintiff responded to the notice by email dated 16 March 2015.

The risk assessor maintained her recommendation that the clearance should be denied and a “Notice of Decision Bar” (as styled) was prepared and signed by the risk assessor, her manager, the team leader and a legal officer. On 25 March 2015 the plaintiff was notified in writing of the decision in compliance with the provision in s 20 (s 20 Notice).

In the course of the risk assessment process, a document entitled “Risk Assessment Report” was prepared and signed by a number of officers of the defendant. That document is of some significance in view of the orders sought in the plaintiff’s summons before this Court and the defendant’s contention that the summons should be summarily dismissed. Before considering the risk assessment report, the orders sought in the summons and the submissions of the parties, it is appropriate to continue the chronology of events by reference to the proceedings that are concurrently before NCAT.

The s 20 Notice advised the plaintiff of his right to apply for a review of the decision to NCAT. Section 27 of the WWC Act provides:

The plaintiff commenced proceedings before NCAT on 2 April 2015. The grounds for the application state:

He also made an application for a stay of the defendant’s decision on the following grounds:

The defendant was notified of the application and the matter was listed on 9 April 2015. The application for the interim stay was dismissed but the substantive application for administrative review remains extant. The defendant was ordered to file and serve all relevant material in their possession by 24 April 2015. The plaintiff was ordered to file and serve his evidence by 22 May 2015. The matter was listed for further directions on 29 May 2015. That was the state of affairs when the matter came before me on 25 May 2015.

As counsel for the defendant contended, the proceedings before NCAT involve a hearing de novo wherein NCAT had jurisdiction “to stand in the shoes of the decision maker, effectively with fresh eyes, and make a decision. If the decision goes, for example, against the applicant, then they have a right of appeal to the Supreme Court on an error of law”. In other words, NCAT is authorised to conduct a merits review. This court is not.

The summons claims the following relief:

On their face, orders 2 and 3 invoke the jurisdiction of the Court under s 69 of the Supreme Court Act 1970 (NSW). However, the defendant’s submission to this effect was refuted by the plaintiff. In written submissions, the plaintiff asserted that “the plaintiff is NOT seeking judicial review of a merits assessment under s 69 of the Act as claimed by the defendant.” On the hearing of the appeal, it was submitted that “it’s not a s 69 review, as alleged by the other party”. If s 69 is not invoked, there is no basis upon which this Court could make the orders sought in paragraphs 2 and 3 of the summons.

Putting aside the power to make orders in the nature of certiorari and mandamus which (contrary to the plaintiff’s submissions) unquestionably exist under s 69, the Court could not make the order sought in paragraph 3. In the absence of authority to conduct a merits review of the case, I can imagine no circumstances in which this Court would justified in compelling the defendant to provide the plaintiff with a clearance entitling him to work with children. The most the plaintiff could hope realistically for would be an order remitting the matter to the defendant to be dealt with according to law.

The order sought in paragraph 1 (and paragraph 4) are based on the Risk Assessment Report and the absence of two particular and “requisite” signatures on the pro-forma document. The argument commences with the proposition that the form does not contain the “requisite signatures” of the manager in Part 7 and a second panel manager in Part H. From that proposition, as I comprehend the submission, it is put that the decision of the defendant to refuse the application for the clearance is void and, therefore (i) the Children Guardian is not satisfied that the plaintiff poses a risk to children and (ii) the NCAT proceedings are not tenable.

There is no merit in either of those contentions. The Risk Assessment Report is an internal document created by the defendant. It is not based around, or dictated by, the requirements of the relevant legislation. The legislation does not require that such a form be signed by the manager of the risk assessor or team leader. Nor does the legislation require that the members of the Case Review Panel sign such a document. The statutory requirements for the risk assessment are contained in Divisions 3-4 of Part 3 (ss 14-20) of the WWC Act. Nothing in those provisions supports the proposition that a decision under s 18 is invalid in the absence of these signatures on such a form. Further, nothing in the legislation supports the contention that the decision once made is not amenable to review by NCAT under s 27 in the absence of signatures on the form.

The defendant relies on rule 13.4(1)(b) and (c) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). It submits that the summons discloses no reasonable cause of action or that they represent an abuse of process.

I considered the appropriate test for summary dismissal in Boscolo v Consumer Trader and Tenancy Tribunal [2014] NSWSC 997 at [28]-[30], CBA v ZYX [2014] NSWSC 1676; (2015) 103 ACSR 476 at [47]-[71] and Westpac Banking v Kekatos [2014] NSWSC 1802 at [27]-[30]. The test is a stringent one and applications for summary dismissal ought not to be taken lightly.

The case must be “so obviously untenable that it cannot succeed”, “manifestly groundless” or “hopeless”: see, for example Dey v Victorian Railway Commissioners [1949] HCA 1; 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 125 at 129. Spencer v The Commonwealth [2010] HCA 28; 241 CLR 118 was concerned with the (less stringent) test for summary judgment under the Federal Court of Australia Act 1976 (Cth). In relation to the common law test, which is reflected in the UCPR, French CJ and Gummow J said at [58]:

In Herbert v Artese [2014] NSWSC 314 Garling J observed at [24]-[25]:

While I agree with counsel for the defendant that those observations have equal application to the present case, I am unable to accept the defendant’s submission that the summons constitutes an abuse of the Court’s process. It is very likely that the discretionary factors of which Garling J spoke would make the Court disinclined to grant prerogative relief if the matter went to a final hearing while NCAT was conducting a review on the merits pursuant to the specific review process provided for by the WWC Act.

However, the existence of two different avenues of review does not, by itself, mean that the bringing of the summons is an abuse of process. That is particularly so in circumstances where the relief sought in paragraph 4 is calculated to abandon the application for administrative review brought by the plaintiff to NCAT.

For the reasons set out at paragraphs [22]-[25], I am satisfied that the relief sought in paragraphs 1, 3 and 4 are so obviously untenable that they cannot possibly succeed. The relief sought in paragraphs 1 and 4 is based on a misconception of the status of the internal form styled “Risk Assessment Report” and the requirement for particular signatories to be present to validate the decision under review. These contentions are manifestly groundless. The case for judicial review based around those contentions is hopeless. The relief sought in paragraph 3 cannot succeed. This Court cannot justify an order compelling the defendant to issue the plaintiff with a clearance.

The plaintiff’s submissions suggest that the relief claimed in paragraphs 2, 3 and 4 all flow from paragraph 1. If that is so, all of the relief sought is destined to fail and so it is submitted by counsel representing the defendant.

Allowing for the possibility that the relief sought in paragraph 2 might stand alone, the plaintiff relies on two submissions that require further consideration. The first submission is:

Section 18 of the WWC Act provides:

I do not accept the plaintiff’s submission as to the proper interpretation of s 18. I do not accept that it is arguable that the word “satisfied” means “completely satisfied” in the context of a protective statute such as the WWC Act.

A related argument concerned the meaning of the word “risk” in the relevant provisions and the extent to which that question is informed by the decision of Young CJ in Eq in Commission for Children and Young People v V [2002] NSWSC 949: cf BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523; BNJ v Children’s Guardian [2015] NSWCAGTAD 96. The plaintiff went on to mount an argument to the effect that the defendant does not apply a consistent methodology or data analysis to the risk assessment in cases such as this and that the defendant’s director is, in any event, “not qualified to make a risk assessment of his own”. These submissions are not arguable in the context of an application for judicial review based on the present summons. When deconstructed, these submissions go to the merits of the plaintiff’s case, rather than to the relief sought in the summons. The matters are certainly arguable in the proceedings before NCAT where all of the relevant material will be considered. NCAT will be required to publish reasons wherein the definition of risk upon which it proceeds will be clear. If those reasons are infected with legal error there is an available avenue of appeal to this court on a question of law.

Before reaching the conclusion expressed in [32], I considered carefully the affidavit of the plaintiff affirmed on 26 April 2015 and the annexures thereto. The affidavit expresses, in various ways, the reasons that the plaintiff says that the decision made by the defendant was wrong. It highlights the factual and legal bases upon which the four orders sought in the summons are predicated. However, it is largely concerned with the factual merit of the plaintiff’s case and the reasons why he says that the defendant’s decision to deny him a clearance was wrong. The affidavit emphasises the fact that the plaintiff has never been convicted of any serious offence and that those “civil offences” appearing on his record were of a very minor nature. It provides explanations for the material that seems to have been (or should have been) considered by the defendant in refusing his application. For example, the defendant had some information of reports, rumours or innuendos regarding certain events that occurred in a caravan park in South Australia. The defendant provides an innocent explanation for this as well as making the unassailable point that he was never charged with any offence arising from these rumours. The affidavit provides details of the plaintiff’s fight against drugs in his home town and proclaims his religious beliefs:

All of these things are relevant to the factual merit of his case and will be important when NCAT conducts its merits review of the decision made by the defendant. Whether the defendant was fully apprised of this material appears doubtful on the material that I have seen. The plaintiff can adduce this additional material before NCAT and NCAT is able to receive additional relevant material. For an example of the procedure in a similar and recent case, see BNJ v Children’s Guardian. However, most of the material in the affidavit advances neither the issue that is currently before me nor the questions to be determined at a final hearing in this Court should the summons not be dismissed.

Nothing I have written should be interpreted as having any relevance to, or bearing upon, a proper consideration of the merit or otherwise of the plaintiff’s application for review before NCAT. My decision is necessarily based on a limited amount of material, on the relevant legislation and concerns somewhat technical legal questions. It is not based around a consideration of the merit of the plaintiff’s application for a clearance. Such a consideration is to be undertaken by NCAT. Nevertheless, for the reasons that I have given, the plaintiff’s summons must be dismissed.

I make the following orders: