ECH v Children’s Guardian [2020] NSWCATAD 52

ECH v Children’s Guardian [2020] NSWCATAD 52

The Tribunal found that the Confidential Documentation was confidential in nature and that orders prohibiting or restricting its disclosure were appropriate. However, because the applicant had no knowledge of the nature of the material and would suffer practical injustice if the Tribunal considered it at the substantive hearing without disclosure or an appropriate summary, the Tribunal declined to receive it as evidence in the substantive hearing except to the extent it is made available to the applicant.

Jurisdiction
Australia
Judgment Date
10 March 2020
Procedural Posture
Administrative Review Under S 27 of the Child Protection (working With Children) Act 2012 (nsw) Concerning Refusal of a Working With Children Check Clearance / Interlocutory Application by the Respondent for Orders Under S 59 of the Administrative Decisions Review Act 1997 (nsw) and Ss 49 and 64 of the Civil and Administrative Tribunal Act 2013 (nsw)
Outcome
Respondent's interlocutory application granted, with confidentiality and non-disclosure orders made and a limitation imposed on use of the Confidential Documentation at the substantive hearing.
Legal Topics
['working With Children Check Clearance' 'confidential Evidence' 'procedural Fairness' 'open Justice' 'non Disclosure Orders']
['administrative Law' 'child Protection' 'civil Procedure'] ['working With Children Check Clearance' 'confidential Evidence' 'procedural Fairness' 'open Justice' 'non Disclosure Orders']

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Procedural Posture

Administrative Review Under S 27 of the Child Protection (working With Children) Act 2012 (nsw) Concerning Refusal of a Working With Children Check Clearance / Interlocutory Application by the Respondent for Orders Under S 59 of the Administrative Decisions Review Act 1997 (nsw) and Ss 49 and 64 of the Civil and Administrative Tribunal Act 2013 (nsw)

Legal Issues

  1. 1 ['Whether the Confidential Documentation was confidential in nature so as to justify orders restricting publication or disclosure, including to the applicant.' 'Whether the respondent should be permitted to rely on Confidential Documentation at the substantive hearing without disclosing it, or at least an appropriate summary, to the applicant.' "How to balance confidentiality and the public interest in child protection against the applicant's entitlement to procedural fairness."]

Ratio Decidendi

The Tribunal found that the Confidential Documentation was confidential in nature and that orders prohibiting or restricting its disclosure were appropriate. However, because the applicant had no knowledge of the nature of the material and would suffer practical injustice if the Tribunal considered it at the substantive hearing without disclosure or an appropriate summary, the Tribunal declined to receive it as evidence in the substantive hearing except to the extent it is made available to the applicant.

Court Disposition

Respondent's interlocutory application granted, with confidentiality and non-disclosure orders made and a limitation imposed on use of the Confidential Documentation at the substantive hearing.

Orders

  • ['The Tribunal orders, pursuant to s 59 of the Administrative Review Act, that the respondent is not required to lodge copies of the material ("Confidential Material") annexed to the confidential affidavit ("Confidential Affidavit") filed in support of the application heard on 7 February 2020.' 'The Tribunal orders,...