FZ v Commissioner for Children and Young People [2010] NSWSC 1144

FZ v Commissioner for Children and Young People [2010] NSWSC 1144

The appeal was allowed because the Tribunal denied the plaintiff procedural fairness by relying on KB's unsworn and untested allegations, which were critical to the finding that he had not proved he did not pose a risk to the safety of children, without giving him an opportunity to cross-examine her or establishing sound reasons for her non-attendance. That denial was an error of law. The plaintiff's other grounds alleging failure to apply Briginshaw and inadequate reasons were not made out.

Jurisdiction
Australia
Judgment Date
08 October 2010
Procedural Posture
Appeal on a Question of Law Under S 33 I(7)(b) of the Commission for Children and Young People Act 1998 and S 75 a of the Supreme Court Act 1970 / Appeal From Decision of the Administrative Decisions Tribunal Dismissing the Plaintiff's Application for a Declaration Under S 33 I
Outcome
Appeal allowed; Tribunal decision set aside; application remitted to the Administrative Decisions Tribunal differently constituted; first defendant ordered to pay the plaintiff's costs of the appeal.
Legal Topics
['administrative Decisions Tribunal' 'natural Justice' 'cross Examination' 'hearsay Evidence' 'briginshaw Standard' 'risk to the Safety of Children' 'prohibited Person' 'child Related Employment']
['administrative Law' 'procedural Fairness' 'child Related Employment Screening' 'evidence'] ['administrative Decisions Tribunal' 'natural Justice' 'cross Examination' 'hearsay Evidence' 'briginshaw Standard' 'risk to the Safety of Children' 'prohibited Person' 'child Related Employment']

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Procedural Posture

Appeal on a Question of Law Under S 33 I(7)(b) of the Commission for Children and Young People Act 1998 and S 75 a of the Supreme Court Act 1970 / Appeal From Decision of the Administrative Decisions Tribunal Dismissing the Plaintiff's Application for a Declaration Under S 33 I

Legal Issues

  1. 1 ["Whether the Tribunal denied procedural fairness by taking into account KB's police record of interview when KB was not made available for cross-examination." 'Whether the Tribunal erred in finding substance in allegations of sexual abuse and psychological abuse against KB.' 'Whether the Tribunal failed to apply the principles in Briginshaw v Briginshaw to allegations of grave conduct.' 'Whether the Tribunal gave adequate reasons for findings that there was substance to the allegations and that the plaintiff was not a credible witness.' 'Whether the Tribunal took into account an irrelevant consideration concerning an alleged sexually explicit text message.']

Ratio Decidendi

The appeal was allowed because the Tribunal denied the plaintiff procedural fairness by relying on KB's unsworn and untested allegations, which were critical to the finding that he had not proved he did not pose a risk to the safety of children, without giving him an opportunity to cross-examine her or establishing sound reasons for her non-attendance. That denial was an error of law. The plaintiff's other grounds alleging failure to apply Briginshaw and inadequate reasons were not made out.

Court Disposition

Appeal allowed; Tribunal decision set aside; application remitted to the Administrative Decisions Tribunal differently constituted; first defendant ordered to pay the plaintiff's costs of the appeal.

Orders

  • ['Allow the appeal.' "Set aside the decision of the Administrative Decisions Tribunal made on 14 October 2009 dismissing the plaintiff's application for an order under s 33I of the Commission for Children and Young People Act 1998 declaring that Part 7, Division 2 of the Act not apply to him in respect of an offence...