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AA v Secretary to the Department of Health and Human Services

AA v Secretary to the Department of Health and Human Services

Case [2020] VSC 400 2 July 2020

Jurisdiction

Procedural Fairness

Reconsideration of Administrative Decisions

Jurisdictional Error

Nullity

Administrative Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2020 02317

AA	Plaintiff
- v -
SECRETARY, DEPARTMENT OF HEALTH AND HUMAN SERVICES	First Defendant
- and -
BB	Second Defendant
- and -
CC	Third Defendant

S ECI 2020 02424

BB	First Plaintiff
- and -
CC	Second Plaintiff
- v -
SECRETARY, DEPARTMENT OF HEALTH AND HUMAN SERVICES	First Defendant
- and -
AA	Second Defendant

S ECI 2020 02429

SECRETARY, DEPARTMENT OF HEALTH AND HUMAN SERVICES	Plaintiff
- v -
AA	Defendant

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JUDGE:	INCERTI J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 June 2020
DATE OF JUDGMENT:	2 July 2020
CASE MAY BE CITED AS:	AA v Secretary to the Department of Health and Human Services & Ors
MEDIUM NEUTRAL CITATION:	[2020] VSC 400 Second Revision: 17 December 2020

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ADMINISTRATIVE LAW – Judicial review – Procedural fairness – Whether s 11 decision-making principles mandatory – Reconsideration of administrative decisions – Jurisdictional Error – Whether nullity – Child protection – Care by secretary order – Family preservation order – Series of decisions to remove children from care without proper notice – Secretary required to give notice and opportunity to be heard – Craig v South Australia (1995) 184 CLR 163 – Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 – Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 85 – Mann v Medical Practitioners Board of Victoria [2004] VSCA 148 – Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 – Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 – Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 – Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 145 FCR 1 – Kabourakis v The Medical Practitioners Board of Victoria [2006] VSCA 301 – Christiansen v Social Security Appeals Tribunal (2010) 126 ALD 423 – Michael v Secretary, Department of Employment, Science and Training (2006) 90 ALD 457 – Minister for Immigration v PDWL [2020] FCA 394 – Children, Youth and Families Act 2005 (Vic) ss 8, 9, 10, 11, 280, 281, 289A, 300, 301, 304, 305, 309, 331, 332 and 333.

CIVIL PROCEDURE – Extension of time to permit bringing applications – Joinder – Standing – Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 9.06(b) and 56.02.

EVIDENCE – Failure to call witnesses – Whether adverse inference should be drawn – Case proved through direct documentary evidence – Jones v Dunkel (1959) 101 CLR 298 – Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345.

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APPEARANCES: S ECI 2020 02317	Counsel	Solicitors
For the Plaintiff	Dr A McBeth with Ms M Stead	TP Legal and Associates
For the First Defendant	Dr I Freckelton QC	Department of Health and Human Services
For the Second Defendant	Mr M Hosking	Nicholes Family Lawyers
For the Third Defendant	Mr M Hosking	Nicholes Family Lawyers

APPEARANCES:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AA v Secretary to the Department of Health and Human Service...

Details

AGLC: AA v Secretary to the Department of Health and Human Services [2020] VSC 400
Case: [2020] VSC 400
Decision Date: 2 July 2020

CaseChat Overview and Summary

The applicant, AA, brought a proceeding in the Supreme Court of Victoria seeking judicial review of decisions made by the Secretary to the Department of Health and Human Services in relation to child protection matters. The Secretary had made a series of decisions to remove the applicant's children from her care without providing the requisite notice and opportunity to be heard, contrary to statutory requirements. The applicant sought a range of remedies, including an order for the Secretary to reconsider the decisions in accordance with the statutory provisions.

The central legal issue before the court was whether the Secretary's failure to comply with the statutory notice and hearing requirements constituted a jurisdictional error that rendered the decisions null and void. The applicant contended that the decisions were void due to the Secretary's failure to adhere to the decision-making principles outlined in the Children, Youth and Families Act 2005 (Vic). The Secretary argued that the decisions were not jurisdictional errors but rather procedural errors that did not affect the validity of the decisions.

The court found that the statutory provisions mandating notice and an opportunity to be heard were mandatory and essential to the process of making decisions about the removal of children from their parents. The court held that the Secretary's failure to comply with these requirements constituted a jurisdictional error, rendering the decisions null and void. The court drew a distinction between jurisdictional errors, which invalidate decisions, and procedural errors, which do not. The court relied on a number of authorities, including Craig v South Australia, Anisminic Ltd v Foreign Compensation Commission, and Minister for Immigration and Border Protection v SZSSJ, to support its conclusion. The court held that the applicant's case was proven through direct documentary evidence and found it unnecessary to draw an adverse inference from the Secretary's failure to call witnesses.

The court made orders for the Secretary to reconsider the decisions in accordance with the statutory provisions, and for the Secretary to pay the applicant's costs.

Orders