BCS v NSW Civil & Administrative Tribunal

The applicant sought by amended summons (which was further amended by oral application on 24 February 2015) an order quashing the decision of the Honourable Senior Member Mullane made on 16 April 2014 refusing to grant to him an enabling order under the Child Protection (Working with Children) Act 2012 (NSW) (the Child Protection Act) (the Decision). The applicant invoked this Court’s jurisdiction on two bases: first, the jurisdiction conferred by the right to appeal on a question of law pursuant to cl 17(1)(a) of Schedule 3 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act); and secondly, the supervisory jurisdiction conferred by s 69 of the Supreme Court Act 1970 (NSW).

The first respondent, the NSW Civil and Administrative Tribunal (the Tribunal), filed a submitting appearance. The second respondent, the Children’s Guardian, was the only active respondent.

The parties have jointly applied for an order under s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW). I regard it as necessary in the public interest for an order to be made under s 7 of the Court Suppression and Non-Publication Orders Act on the ground provided for in s 8(1)(e): namely that it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice. I consider that the public interest in protecting the identity of a child who has made an allegation of sexual assault significantly outweighs the public interest in open justice in the present case. I regard the sacrifice to the principles of open justice occasioned by the use of a pseudonym in the present case to be relatively slight. A pseudonym has been used in these reasons instead of the applicant’s name so as not to identify an alleged victim. This preserves the situation that arose by reason of the Tribunal referring to the applicant by pseudonym.

The applicant challenged the Decision on the following two principal bases:

In order to address the challenges to the Decision, it is necessary to set out the statutory scheme as well as the factual background to the Decision and the proceedings before the Tribunal

Section 3 of the Child Protection Act described the objects of the Act as follows:

Section 4 of the Child Protection Act provided that:

The Child Protection Act relevantly prohibits a worker from engaging in “child-related work” unless the worker holds a working with children check clearance (a Clearance) of a class applicable to the work: s 8(1). It is common ground that the applicant, who is a dentist, would be involved in “child-related work” within the meaning of s 6 of the Child Protection Act if he were to provide dental services to children (defined as persons under the age of 18 years: s 5(1) of the Child Protection Act) since this would involve both physical and face to face contact with children. Section 13 of the Child Protection Act makes provision for applications for Clearances to be made to the Children’s Guardian, which is a statutory office held pursuant to an appointment under s 178 of the Children and Young Persons (Care and Protection) Act 1998 (NSW): see the definition in s 5 of the Child Protection Act.

Section 18 of the Child Protection Act prohibits the Children’s Guardian from granting a Clearance to persons who have been convicted of certain offences if committed as adults. Such persons are referred to as “disqualified persons”: s 18(1). Schedule 2 relevantly specifies an offence under s 61I of the Crimes Act 1900 (NSW) (sexual intercourse without consent) as a disqualifying offence: cl 1(1)(e). Section 28 of the Child Protection Act provides that a disqualified person, who has been refused a Clearance because the person is disqualified, may apply to the Tribunal for an “enabling order” declaring that the person is not to be treated as a disqualified person for the purposes of the Child Protection Act in respect of an offence to be specified in the order.

An applicant must fully disclose to the Tribunal any matters relevant to the application: s 28(5) of the Child Protection Act. The Children’s Guardian is to be a party to any proceedings for an enabling order and may make submissions in opposition to or in support of the making of the order: s 28(4) of the Child Protection Act. In any such proceedings in the Tribunal it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children. If the Tribunal makes an enabling order, it may order the Children’s Guardian to grant the person a Clearance: s 28(6) of the Child Protection Act.

Section 30(1) of the Child Protection Act provides:

Section 62 of the NCAT Act provides:

Although the disclosure obligation is imposed on an applicant for an enabling order, the extent to which it is complied with is not expressly included within the list of mandatory relevant considerations in s 30(1) of the Child Protection Act. The terms of the Child Protection Act do not express what consequences, if any, are to flow when an applicant for an enabling order fails to comply with the obligation imposed by s 28(5). There is no express provision to the effect that where there has been an established failure to make full disclosure of relevant matters, the Tribunal is not obliged to consider the application or to have regard to the matters identified in s 30(1) of the Child Protection Act. No such provision can be implied.

Lack of full disclosure could fall for consideration within s 30(1)(j) of the Child Protection Act, which requires the Tribunal to consider “any information given by the applicant in, or in relation to, the application”. It might also fall for consideration by reason of 30(1)(k), but only if the Children’s Guardian thought it necessary.

If an applicant’s failure to comply with the obligation indicates a lack of insight, or dishonesty, the failure may be relevant to the question whether an enabling order ought be made because it is relevant to the assessment of risk and the paramount consideration of the operation of the Child Protection Act: namely, the safety, welfare and well-being of children and, in particular, protecting them from child abuse. However, if an applicant’s failure to disclose relevant matters arises from a lack of appreciation of their relevance or imperfect recollection, the failure may be immaterial to the question whether an enabling order ought be made and immaterial to the safety, welfare and well-being of children.

The disclosure called for is full disclosure of any matters relevant to the application. This will depend on the nature of the application which, in turn, in circumstances where the need for the enabling order arises by reason of a disqualifying offence, depends on the nature of the disqualifying offence and any associated criminal conduct or allegation of criminal conduct. Full disclosure in such a case would require an identification of circumstances of any offence of which the applicant was found guilty, together with the sentence imposed and a description of any other allegations made or charges laid. The evident purposes of the obligation imposed on the applicant to “fully disclose to the Tribunal any matters relevant to the application” is to enable the Children’s Guardian to investigate facts relevant to the factors listed in s 30(1) of the Child Protection Act (for the purposes, in part, of deciding whether to support or oppose the application) and to enable the Tribunal, at the hearing of the application, to consider these factors in a substantial way.

On 5 March 2008 the applicant was convicted following a trial by jury of an offence against s 61I of the Crimes Act 1900 (NSW) in that between 14 and 30 April 2005 he had sexual intercourse with his then wife without her consent and knowing that she had not consented. For that count he was sentenced to a term of imprisonment for four years, commencing on 6 September 2008 and expiring on 5 September 2012 with a non-parole period of two years commencing on 6 September 2008 and expiring on 5 September 2010. He was convicted of other counts, for which he was also sentenced but none of the other counts was a disqualifying offence within the Child Protection Act. He was in custody from 6 June 2008.

By letter dated 22 December 2010, the applicant’s then solicitors wrote to the Dental Board of Australia to disclose the applicant’s criminal history as a result of the convictions entered on 5 March 2008. The letter set out the various charges, the counts in respect of which he was convicted and the underlying conduct alleged against him. The letter also disclosed charges which had been laid against him in 2002 in the following terms:

On 30 July 2013 the applicant applied to the Children’s Guardian for a Clearance. As it was required to do by s 18 of the Child Protection Act, the Children’s Guardian refused the Clearance.

On 25 September 2013 the applicant applied to the Tribunal for an enabling order. He attached in support of his application the letter dated 22 December 2010 from his solicitors to the Dental Board referred to above.

As provided for by s 28(4) of the Child Protection Act, the Children’s Guardian was a party to the proceedings.

The Children’s Guardian obtained material from the Department of Community Services (DOCS) which it provided to Dr Collins, the expert psychologist it qualified for the purposes of the proceedings in the Tribunal. The applicant relied on a report from Ms Grapsas, a clinical psychologist, who first saw him on 24 March 2008 in connection with the sentencing hearing following the trial referred to above and continued to see him weekly following his release in December 2010. The tender bundle for the proceedings in the Tribunal also included character references and the remarks on sentence by Knox DCJ. The remarks on sentence recorded his Honour’s findings that the offence against s 61I of the Crimes Act was “an isolated act” ([95]) and that the criminality of this offence was “low range” ([99]).

The applicant also relied on statements made by him on 11 November 2013 and 9 April 2014 in support of his application which were included in the tender bundle. In [11] of the second statement, the applicant referred specifically to [22] of the report of Dr Collins which read as follows:

In [13] of his second statement, the applicant expressly denied the matters referred to in [22] of Dr Collins’ report. In [14] the applicant said:

The applicant gave oral evidence at the hearing in the Tribunal. He was cross-examined about various allegations that had been made against him in the past, by patients in respect of conduct in 2001 and 2002 and by his daughter. It was not put to him by counsel for the Children’s Guardian that he had failed to disclose any information relating to these allegations to the Tribunal or that any such failure was dishonest or deliberate. The cross-examination involved putting to him further detail about these allegations (which the Children’s Guardian had obtained from various sources, including DOCS and the NSW Police, for the purposes of the proceedings) to obtain his response.

Dr Collins also gave oral evidence in the Tribunal. She was asked in examination-in-chief whether the specific facts of allegations made by patients had been disclosed to her by the applicant. She said:

Dr Collins was also asked about the level of risk that the applicant would pose if he were permitted to treat children. She answered:

On 16 April 2014, at the conclusion of the hearing, following a short adjournment, the Tribunal dismissed the applicant’s application. The applicant requested reasons which were ultimately provided by the Tribunal on 23 June 2014 (the Reasons).

The Reasons form part of the record for the purposes of this Court’s jurisdiction under s 69(3) of the Supreme Court Act 1970 (NSW): s 69(4) of the Supreme Court Act. Therefore if the Reasons reveal error, there is an error on the face of the record and this Court’s jurisdiction to grant relief under s 69 of the Supreme Court Act is enlivened.

At [1]-[4] of the Reasons, the Tribunal set out the nature of the application and the reason why the applicant is a “disqualified person”. The Senior Member set out the relevant legislative provisions and referred to ss 4, 6, 8, 9, 11, 12, 13, 18 and Schedule 2 of the Child Protection Act. The Senior Member set out ss 28 and 30 in full. In the balance of the Reasons, which were headed “Non Disclosure”, the Tribunal made findings that the applicant had failed to disclose certain matters and set out its conclusion. Having regard to the challenges made to the Decision this part of the Reasons is set out in full below:

The amended summons, which was filed on 26 September 2014, was amended further by oral application made by Mr Naylor on behalf of the applicant on the day of the hearing to add recourse to the applicant’s right of appeal to this Court pursuant to cl 17(1)(a) of Schedule 3 of the NCAT Act.

A summons commencing a statutory appeal must be filed within 28 days of the material date, being the date of the order the subject of the appeal: UCPR 50.3(1). The material date was 16 April 2014. The summons was filed on 1 July 2014. The Reasons were not provided until 23 June 2014 and the transcript of the hearing was not available until after the summons was filed. The Children’s Guardian does not oppose an extension of time under UCPR 50.3(1). It is, in my view, in the interests of justice to grant the extension.

The applicant challenges the Decision on the following bases:

Each of these matters raises a question of law within the meaning of cl 17(1)(a) of Schedule 3 of the NCAT Act. It is not necessary to address any difference between the jurisdiction conferred by the NCAT Act on a statutory appeal and this Court’s jurisdiction pursuant to s 69 of the Supreme Court Act.

Section 30(1) of the Child Protection Act required the Tribunal to take into account the matters listed in the subparagraphs to the section, with the exception of (f), which was not germane to the application for an enabling order since the victim of the disqualifying offence was an adult. Failure to take into account a matter that a decision-maker is bound, either expressly or by necessary implication, to take into account renders the exercise of the statutory discretion susceptible to challenge on the ground that it has not been exercised according to law: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 (Peko-Wallsend) at 39 per Mason J. A decision which has been made without regard to mandatory relevant considerations ought be set aside unless the factor to which no regard has been had is so insignificant that the failure to take it into account could not have materially affected the decision: Peko-Wallsend at 40 per Mason J.

As can be seen from the extract from the Reasons set out above, the sole factor considered by the Tribunal was the alleged failure on the part of the applicant to comply with his obligation under s 28(5) of the Child Protection Act to “fully disclose to the Tribunal any matters relevant to the application”.

However, it is not open to the Tribunal to disregard other mandatory relevant considerations listed in s 30(1) on the basis that it regards a single factor as of such significance that all others can be overlooked. Although s 30 of the Child Protection Act was set out in full in the Reasons, it was not complied with.

In Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 the High Court said of the reasons required of a medical panel giving an opinion pursuant to s 68(2) of the Accident Compensation Act 1985 (Vic) on a medical question referred to it:

The Reasons reveal that what the Tribunal did in the instant case was to confine its consideration to what the Senior Member apparently regarded as the applicant’s egregious non-compliance with the obligation to make full disclosure of relevant matters. They show that the Tribunal failed to have regard to the other matters in s 30(1) of the Child Protection Act which it was obliged to consider

It cannot be accepted that the matters not taken into account were so insignificant that a failure to take them into account could not have materially affected the Decision. Among the matters not considered by the Tribunal were: the views of the sentencing judge of the objective seriousness of the disqualifying offence (s 30(1)(a)); the length of time since the offence and the applicant’s conduct since its commission (s 30(1)(b)); the applicant’s age at the time of the commission of the offence (s 30(1)(c)); and the age of the victim (applicant’s wife) at the time of the offence (s 30(1)(d)); the difference in their ages and the relationship between them (s 30(1)(e)); the applicant’s present age (s 30(1)(g)); the extent of the applicant’s criminal record, which was confined to the matters for which he was sentenced by Knox DCJ (s 30(1)(h)); and the evidence of both experts that the applicant posed a low risk having regard to the nature and circumstances of his offending conduct and the associated allegations (which would appear to fall within s 30(1)(i) since the Children’s Guardian raised them).

Accordingly, the applicant has not had his application for an enabling order determined in accordance with law. Ground 9 has been made out. In these circumstances the appropriate relief is to quash the Decision and remit the applicant’s application for an enabling order to the Tribunal to be determined in accordance with law.

In deference to the detailed submissions of Mr Naylor on behalf of the applicant and Mr Moore on behalf of the Children’s Guardian, I shall address the remaining grounds although the Decision must, for the reasons given above, be set aside on the basis of Ground 9. My reasons ought not be taken to express findings as to the underlying facts since the extent of disclosure, is at least potentially, a relevant matter to be considered by the Tribunal to which the applicant’s application is remitted under s 30(1)(j) or (k) of the Child Protection Act for the reasons given above.

The applicant challenged each of the following findings that related to charges laid as a result of complaints by patients in or about 2001 or 2002:

Although there was an issue about whether both charges were laid in 2002 (as the applicant recalled it) or whether there was a charge in 2001 and another in 2002, this issue does not appear to be material to the alleged non-disclosure since it is common ground that there were two charges. The applicant disclosed both charges (one count of aggravated sexual assault and one count of assault with indecency) in the letter from his solicitors dated 22 December 2010, which was incorporated by reference into his application for an enabling order. He disclosed that the first charge of aggravated sexual assault was withdrawn and that the second was dismissed. In his statement dated 9 April 2014 he said as follows:

The Tribunal is obliged to have regard to any information the applicant has provided to it in relation to his application (s 30(1)(j) of the Child Protection Act). The meaning of “any” in this phrase ought, in my view, to be taken to mean “all”. Any alleged failure to disclose must be adjudged, if it is to be taken into account at all, by reference to all of the information that an applicant for an enabling order has provided to the Tribunal. Such information included the applicant’s witness statements and any other material which they incorporated by reference. The only matter referred to in the Reasons that was not disclosed by the applicant in the information he had provided to the Tribunal before he was cross-examined was that the victim was female.

Mr Naylor submitted, on behalf of the applicant, that these findings were no mere factual errors which would be immune from this Court’s intervention. He contended that the errors amounted to errors of law because the factual findings were made in the absence of evidence: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-356 per Mason CJ. In respect of the findings at [18] and [19] of the Reasons extracted above, I am satisfied that they are erroneous at law because there was no evidence to support them. It appears that the Tribunal was under a misapprehension as to the matters that the applicant had disclosed in the material which was in the tender bundle which was before the Tribunal.

The applicant challenged each of the following findings that related to the second charge laid as a result of a complaint by another patient in 2002:

When the applicant was cross-examined, certain particulars of the 2002 Allegation were put to him, including that he had asked a female patient to take her bra off, that he had touched her breast and that he had touched her in the groin area. He substantially accepted that this is what had been alleged against him, although he denied that it had occurred.

I consider that the finding that the applicant had failed to disclose the 2002 Allegation is in the same category as the findings relating to disclosure of the 2001 Allegation and the Detail of the 2001 Allegation in that there was no evidence to support it. The finding relating to the Detail of the 2002 Allegation is in a different category in that further details of the complaint, which the applicant had not previously disclosed to the Tribunal, were put to him in cross-examination. Whether they ought to have been disclosed and the relevance, if any, of his non-disclosure to his application for an enabling order does not fall for determination in the Court.

The applicant also challenged the following findings made by the Tribunal at [21]-[25] of the Reasons:

I consider the findings in [22] and [25] of the Reasons fall into the same category as the other findings identified above for which there is no evidence. In [11] of his statement of 9 April 2014 the applicant referred to [22] of Dr Collins report which summarises the DOCS materials, including the allegations made against him in respect of his conduct towards his daughter. The finding in [23] of the Reasons was, as Mr Moore conceded, never put to the applicant in cross-examination and therefore the finding involved a denial of natural justice. Further, Mr Moore confirmed before me that it was no part of the case put by the Children’s Guardian to the Tribunal that a non-disclosure by the applicant had been material or deliberate or in order to conceal the truth from the Tribunal. The finding in [24] of the Reasons appears to have proceeded upon a misapprehension that a denial of an allegation cannot amount to a sufficient response.

The Children’s Guardian sought an order that, if the matter is remitted to the Tribunal, it be heard by a member other than Senior Member Mullane. The applicant adopted the submissions made by the Children’s Guardian and supported the application for such an order.

For the foregoing reasons, I consider that the Senior Member failed to undertake the statutory task required of him and made findings for which there was no evidence. The parties have identified the following risks that would ensue if the matter for remitted to Senior Member Mullane. First, the applicant might have grounds for an apprehension of bias and may feel that he would not obtain the fresh hearing to which I have found he is entitled. Secondly, there may be a risk or at least the appearance of risk of so-called compensatory bias: see Mason, “Unconscious Judicial Prejudice” (2001) 75 ALJ 676. Thirdly, there is a risk that the Senior Member might feel obliged to recuse himself if the matter were remitted to the Tribunal and allocated to him.

These matters, together with the fact that both parties seek such an order, are relevant to whether it is appropriate to make an order remitting the matter to a differently constituted Tribunal: Seltsam Pty Limited v Ghaleb [2005] NSWCA 208 at [12] per Mason P, Ipp JA agreeing at [141]; see also Basten JA at [239]. Although this Court’s power to make such an order ought be exercised with caution, the present case is, in my view, one in which such an order ought be made in the interests of justice.

For the foregoing reasons I make the following orders: