FZ v Commission for Children and Young People [2012] NSWADT 93

FZ v Commission for Children and Young People [2012] NSWADT 93

The documents recording KB's representations were not admitted because KB was unavailable for cross-examination, the allegations were unsworn and untested, the allegations had not been pursued criminally or civilly, there were significant inconsistencies between KB's and VB's evidence, the applicant denied the allegations, KB's credit could not be tested, and the allegations went to the core issue of whether the applicant was a risk of harm to children. In those circumstances, admitting the evidence and merely discounting its weight would not permit a fair and proper hearing.

Jurisdiction
Australia
Judgment Date
18 May 2012
Procedural Posture
Application Pursuant to S33 I of the Commission for Children and Young People Act, 1998 Seeking an Order That the Act No Longer Apply to the Applicant in So Far as It Declares Him to Be a Prohibited Person / Interlocutory Preliminary Issue on Remittal Concerning Admissibility of Representations Where the Witness Was Unavailable for Cross Examination
Outcome
Respondent's application to admit the documents recording representations made by KB was refused.
Legal Topics
['procedural Fairness' 'hearsay Evidence' 'cross Examination' 'prohibited Person in Child Related Employment' 'admissibility of Evidence in Tribunal Proceedings']
['administrative Law' 'evidence' 'child Protection'] ['procedural Fairness' 'hearsay Evidence' 'cross Examination' 'prohibited Person in Child Related Employment' 'admissibility of Evidence in Tribunal Proceedings']

Case Brief

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Procedural Posture

Application Pursuant to S33 I of the Commission for Children and Young People Act, 1998 Seeking an Order That the Act No Longer Apply to the Applicant in So Far as It Declares Him to Be a Prohibited Person / Interlocutory Preliminary Issue on Remittal Concerning Admissibility of Representations Where the Witness Was Unavailable for Cross Examination

Legal Issues

  1. 1 ['Whether documents recording representations made by KB should be admitted into evidence when KB was unavailable for cross-examination.' 'Whether admitting untested allegations concerning serious criminal conduct on a core issue would deny the applicant a fair and proper hearing.']

Ratio Decidendi

The documents recording KB's representations were not admitted because KB was unavailable for cross-examination, the allegations were unsworn and untested, the allegations had not been pursued criminally or civilly, there were significant inconsistencies between KB's and VB's evidence, the applicant denied the allegations, KB's credit could not be tested, and the allegations went to the core issue of whether the applicant was a risk of harm to children. In those circumstances, admitting the evidence and merely discounting its weight would not permit a fair and proper hearing.

Court Disposition

Respondent's application to admit the documents recording representations made by KB was refused.

Orders

  • ['The documents, identified as documents (a) - (j) as far as they record representations made by KB, are not admitted into evidence.' 'The matter is relisted for further directions on 25 June 2012 at 9.30am for orders for the further progress of the matter.']