Children’s Guardian v BRL [2016] NSWSC 1206

Children’s Guardian v BRL [2016] NSWSC 1206

The Tribunal did not err in law by receiving the four police statements only as evidence that the allegations were made. Although the Tribunal was not bound by the rules of evidence, s 38(2) required it to observe natural justice. Given the seriousness and centrality of the allegations, the absence of any conviction or finding that the assaults occurred, the Children's Guardian's failure to call the statement makers or explain their absence, and the lack of any prior cross-examination, reliance on the statements as proof of their truth would have denied procedural fairness. Sections 27 and 30 of the Child Protection (Working with Children) Act 2012 (NSW) did not require the Tribunal to...

Jurisdiction
Australia
Judgment Date
18 August 2016
Procedural Posture
Administrative Law Appeal From Civil and Administrative Tribunal Decision Concerning Refusal of a Working With Children Check Clearance / Supreme Court Summons Appealing on a Question of Law; Final Determination
Outcome
The summons was dismissed.
Legal Topics
['working With Children Check Clearance' 'risk to the Safety of Children' 'hearsay Evidence in Administrative Proceedings' 'natural Justice' 'ncat Administrative Review']
['administrative Law' 'child Protection' 'evidence' 'procedural Fairness'] ['working With Children Check Clearance' 'risk to the Safety of Children' 'hearsay Evidence in Administrative Proceedings' 'natural Justice' 'ncat Administrative Review']

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Procedural Posture

Administrative Law Appeal From Civil and Administrative Tribunal Decision Concerning Refusal of a Working With Children Check Clearance / Supreme Court Summons Appealing on a Question of Law; Final Determination

Legal Issues

  1. 1 ['Whether the Tribunal erred in law by receiving four 1998 police statements only for the limited purpose of proving that allegations were made, and not as evidence of the truth of the allegations.' 'Whether the Tribunal was bound to receive the hearsay statements for all purposes because the rules of evidence did not apply.' 'Whether ss 27 and 30 of the Child Protection (Working with Children) Act 2012 (NSW) required the Tribunal to treat the statements as proof of their contents.' 'Whether reliance on untested hearsay allegations of serious sexual misconduct without calling the makers for cross-examination would deny procedural fairness.']

Ratio Decidendi

The Tribunal did not err in law by receiving the four police statements only as evidence that the allegations were made. Although the Tribunal was not bound by the rules of evidence, s 38(2) required it to observe natural justice. Given the seriousness and centrality of the allegations, the absence of any conviction or finding that the assaults occurred, the Children's Guardian's failure to call the statement makers or explain their absence, and the lack of any prior cross-examination, reliance on the statements as proof of their truth would have denied procedural fairness. Sections 27 and 30 of the Child Protection (Working with Children) Act 2012 (NSW) did not require the Tribunal to...

Court Disposition

The summons was dismissed.

Orders

  • ['The summons is dismissed.' "The plaintiff is to pay the defendant's costs."]