Commissioner for Children and Young People v FZ

[2011] NSWCA 111

NSW Court of Appeal

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Interrogate

Catchwords

1. Administrative Law
2. › Natural justice
3. › Procedural fairness
4. › Right to cross-examine
5. › Tribunal not bound by rules of evidence
6. › Whether admission of hearsay statement of key witness without opportunity for cross-examination denied procedural fairness
7. › Whether witness shown to be unavailable
8. › Administrative Decisions Tribunal Act 1997 (NSW), ss 70, 73
1. Administrative Law
2. › Tribunals
3. › Onus of proof
4. › Protective proceedings
5. › Whether Commissioner bears onus to prove allegations to Briginshaw standard
6. › Whether onus remains on applicant to prove no risk to children
7. › Commission for Children and Young People Act 1998 (NSW), ss 32, 33J
1. Evidence
2. › Hearsay
3. › Tribunal proceedings
4. › Admission of hearsay in proceedings where rules of evidence do not apply
5. › Whether rationally probative material may be admitted where witness unavailable for cross-examination
6. › Fairness to parties
7. › Administrative Decisions Tribunal Act 1997 (NSW), s 73

Quick Take

A tribunal not bound by the rules of evidence denies procedural fairness if it admits and relies upon the hearsay statement of a key witness on a core issue without establishing that the witness is truly unavailable for cross-examination. An unwilling witness amenable to court process is not 'unavailable'. In applications under s 33J of the Commission for Children and Young People Act 1998, the onus remains on the applicant to prove no real risk to children; the Commissioner bears no onus to prove allegations to the Briginshaw standard.