AB v State of New South Wales - [2015] HCASL 94

AB
v
STATE OF NEW SOUTH WALES & ANOR
[2015] HCASL 94
S2/2015

This is an application for special leave to appeal from a judgment of the Court of Appeal of the Supreme Court of New South Wales, dismissing an application for leave to appeal from an order of Garling J that the applicant's statement of claim be summarily dismissed as disclosing no reasonable cause of action. As Garling J noted in his Honour's reasons for judgment, the pleading and particulars were drafted by the applicant without legal assistance and the applicant appeared for himself.
In order to aid understanding, it is necessary to record that the applicant is the natural father of a child, XY. In 2005 an order was made pursuant to s 79 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) ("the CYP Act") allocating parental responsibility for XY to the Minister for Family and Community Services ("the Minister") and binding the applicant and the child's mother, CD, to enter into various undertakings concerning XY. It was also ordered that XY should live with CD. The applicant, however, appealed against the orders and, in 2006, the District Court made orders by consent: (1) allocating responsibility for XY "in relation to all aspects, solely to the Minister ... until she attains the age of 18 years"; (2) that XY live with the applicant "for the foreseeable future"; and (3) for supervised access of XY to CD and CD's extended family.
Under the applicant's care, XY developed very satisfactorily and won a full scholarship to a leading secondary school. The applicant accepted the offer of the scholarship on XY's behalf without reference to the Minister, although the Minister subsequently learned of the situation as a result of a case worker's conversation with XY shortly before she began at the school. Upon accepting the offer of the scholarship, the applicant signed a form acknowledging that he would be personally liable to the school for service fees, extras and other charges over and above basic tuition fees covered by the scholarship. As might be imagined with a school of the kind in question, those other charges proved to be very significant.
In 2012, the applicant made a claim on the Minister for back payment of outgoings totalling $94,872 and a further request for support in paying orthodontic fees of $5,500. The Minister declined to assist.
On 11 December 2012, the applicant instituted his proceeding in the Supreme Court against the State of New South Wales and also the school, although no relief was sought against the school. By his Statement of Claim, the applicant pleaded that he was the authorised carer of XY pursuant to reg 30(1)(a) of the Children and Young Persons (Care and Protection) Regulation 2012 (NSW) and also pursuant to s 137(1)(b) of the CYP Act; and that, by so being appointed the authorised carer, he was an employee of the State. He further alleged that given his status as authorised carer and employee, the State was bound to pay him the Carer's Allowance, including the back-pay and the orthodontic expenses; and that, by refusing to pay him those entitlements, the State had discriminated against him contrary to s 49V of the Anti-Discrimination Act 1977 (NSW) on the grounds of his responsibility as a carer.
In the alternative, he pleaded that by failing to pay him the amount of his claim the Minister had breached a statutory duty arising under s 147 of the CYP Act.
In dealing with the first cause of action, Garling J recorded that the applicant had submitted orally in opposition to the application for summary dismissal that his allegation that he was an employee of the State rested in part on a statement made in the New South Wales Mandatory Reporter Guide, to the effect that authorised carers engaged by an agency to provide services to children and young people are considered to be employees for the purposes of s 25A of the Ombudsman Act 1974 (NSW). The applicant contended that, if he were an employee for that purpose, he should be regarded as an employee for the purposes of his claim.
The applicant also relied on s 33 of the Commission for Children and Young PeopleAct 1998 (NSW) ("the Commission Act"), which provides that "employment" for the purposes of Pt 7 of the Commission Act includes "performance of work as a volunteer for an organisation". Part 7 mandates screening for employment as defined. The applicant contended that, because Pt 7 required that he be "screened for employment", he should be regarded as an employee for the purposes of his claim.
For detailed reasons which it is unnecessary to rehearse, Garling J concluded that s 25A of the Ombudsman Act did no more than define "employee" in such a way as to provide the Ombudsman with the widest authority to investigate reportable conduct, and that it did not create any relationship of employer and employee between the State and the applicant in the ordinary sense of employment.
Similarly, his Honour held, s 33 of the Commission Act was but a drafting technique for providing that a widely defined class of persons associated with the care of children on behalf of the State be screened under Pt 7 of the Act. It did not create a relationship of employer/employee between the State and the applicant in the ordinary sense of employment.
Finally, his Honour held that, although s 147 of the CYP Act provided a statutory indemnity to an authorised carer by the Minister for any "loss or damage" caused by a young person in the care of the authorised carer, read in context, including the provision made by s 161 for the Director‑General of the Department of Family and Community Services to have a discretion to "grant financial assistance to any person having the care of the child", it was impossible to conclude that the ordinary costs of raising a child were within "loss or damage" "caused by a child" within the meaning of s 147.
On that basis, his Honour held that the applicant's claim was plainly untenable and therefore ought to be summarily dismissed.
The Court of Appeal (McColl and Leeming JJA) concluded that there was no error in Garling J's reasons or conclusion.
The applicant does not have legal representation and so the application falls to be determined pursuant to r 41.10 of the High Court Rules 2004.
The applicant's first proposed ground of appeal to this Court is that the Court of Appeal failed to take into account what he describes as the mutual exclusivity of sole parental responsibility vested in the Minister under s 79 of the CYP Act and "that in a biological parent who is an Authorised Carer under s 30". The applicant contends that, if the Court of Appeal had taken that into account, they would have concluded that "biology does not usurp the operation of the law".
That ground of appeal does not enjoy sufficient prospects of success to warrant the grant of special leave to appeal. Garling J's conclusion, and thus the Court of Appeal's dismissal of leave to appeal from his Honour's judgment, were not based on the applicant being the natural father of XY or on some idea of that somehow disentitling him to the assistance to which he would otherwise have been entitled as carer. The decision was based on the fact that, upon its proper construction, the CYP Act does not afford a right of recompense other than for loss and damage caused by the child to an authorised carer within the meaning of s 147, and that the costs of raising a child are not loss and damage caused by the child within the meaning of that section.
The applicant's second proposed ground of appeal is that the Court of Appeal "failed to give sufficient weight to the multi‑factorial common law test for the definition of 'employee'" and, had it done so, it would have been led to conclude that the applicant was the State's employee.
That ground of appeal also does not enjoy sufficient prospects of success to warrant the grant of special leave to appeal. It is plain from the reasons for judgment of Garling J and also from those of the Court of Appeal that their Honours were cognisant of the multi-factorial nature of the criteria of employment essayed in Hollis v Vabu Pty Ltd[1]. The problem for the applicant was that, even giving full rein to Hollis v Vabu, the notion that the applicant was the State's employee in the natural and ordinary sense of that word was untenable.
[1](2001) 207 CLR 21; [2001] HCA 44.
The applicant's third proposed ground of appeal is that the Court of Appeal imputed to the applicant knowledge of the law relating to costs which he did not have. Had it not done so, it would have given him an opportunity to make submissions as to why he should not have been ordered to pay the costs at first instance.
That ground of appeal similarly does not enjoy sufficient prospects of success to warrant the grant of special leave to appeal. For whether or not the Court of Appeal imputed any knowledge of costs law to the applicant (and one may take leave to doubt that they would have), there was nothing that could be said in opposition to Garling J's order that costs of the summary dismissal motion should follow the event.
As Garling J observed in his reasons for judgment, the applicant appears to have strong convictions in the righteousness of his claims. If there were any way in which the applicant's claim could be reformulated to render it arguable, it would be appropriate to grant leave to re-plead. But the difficulty for the applicant is that, although the outlays in question benefited the State in the sense of discharging the State's obligation to care for XY, the applicant made the payments voluntarily. Payments made in the belief that the payer is under a moral obligation to make them or because the payer has bound himself by contract to make them are not payments made under compulsion of law in discharge of another's liability[2].
[2]Esso Petroleum Co Ltd v Hall Russell & Co Ltd (the "Esso Bernicia") [1989] AC 643 at 663.
For those reasons, pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

K.M. Hayne
13 May 2015 G.A.A. Nettle