Banks (a pseudonym) v Chief Executive of the Department for Child Protection

[2023] SASCA 102

PREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Civil)

BANKS (A PSEUDONYM) v CHIEF EXECUTIVE OF THE DEPARTMENT FOR CHILD PROTECTION

[2023] SASCA 102

Judgment of the Honourable Justice Doyle  (ex tempore)

22 September 2023

FAMILY LAW AND CHILD WELFARE - CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION - CHILDREN IN NEED OF PROTECTION

FAMILY LAW AND CHILD WELFARE - CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION - CUSTODY - APPEALS

Appeal against the decision of a single judge dismissing an appeal from an order of a Magistrate of the Youth Court, on the application of the respondent, placing the applicant’s son under the guardianship of the respondent pursuant to s 53(1)(e) of the Children and Young People (Safety) Act 2017 (SA).

The order was an interim one, resulting in a guardianship of not more than 12 months.

The applicant appeals on three grounds asserting error in very general terms.  The notice of appeal did not include an application for leave to appeal as required by r 213.1(1)(b) of the Uniform Civil Rules 2020 (SA).  The applicant also requires an extension of time to file her notice of appeal.

The matter has been called on for directions on several occasions, and applications for adjournments have been granted to provide the applicant with opportunities to regularise her appeal and file submissions in support of an application for leave to appeal.

Held, striking out the applicant’s notice of appeal:

1.The applicant has had ample opportunity to regularise her appeal and despite being put on notice on numerous occasions, has not done so.  It is not appropriate to grant any further adjournment or opportunity to address the defects in the notice of appeal.

2.      The notice of appeal is struck out pursuant to r 212.5(2)(b).

Children and Young People (Safety) Act 2017 (SA) s 53; Uniform Civil Rules 2020 (SA) rr 212.5, 213.1, referred to.

BANKS (A PSEUDONYM) v CHIEF EXECUTIVE OF THE DEPARTMENT FOR CHILD PROTECTION

[2023] SASCA 102

Court of Appeal – Civil:  Doyle JA

1. DOYLE JA (ex tempore):  The applicant seeks to appeal from a judgment of a single judge made on 22 March 2023. The effect of the judgment was to dismiss an appeal from an order of a Magistrate of the Youth Court, on the application of the respondent, placing the applicant’s son under the guardianship of the respondent pursuant to s 53(1)(e) of the Children and Young People (Safety) Act 2017 (SA). The order was an interim one, resulting in a guardianship of not more than 12 months.

2. The applicant filed a notice of appeal on 11 May 2023.

3. The notice of appeal does not include an application for leave to appeal, despite that being necessary by reason that the appeal would be a second appeal; that is, an appeal from a judgment which was itself a judgment on appeal (r 213.1(1)(b) of the Uniform Civil Rules 2020 (SA)).

4. The notice of appeal was filed out of time.  The applicant has sought an extension of time, and filed an affidavit explaining the difficulties she had in bringing the appeal in a timely way.  She relied upon a combination of her difficult financial circumstances and consequential inability to obtain legal representation, her difficulty in understanding what was required of her as a self-represented litigant, the competing pressures upon her by reason of the other related litigation in which she is involved, and her personal health issues.

5. The notice of appeal contains three grounds asserting error, but expressed in only the most general of terms.  The notice does not identify alleged errors with the specificity that is appropriate, indeed necessary, for a notice of appeal.

6. The matter was listed in Bleby JA’s callover on 14 July 2023.  The applicant sought, and was granted, a two week adjournment on account of illness.

7. The matter was then listed in my callover on 28 July 2023.  The applicant did not attend.  The hearing proceeded in her absence.  I arranged for the transcript of the hearing to be emailed to her, and for her to be informed that the matter had been adjourned to 18 August 2023 and that she needed to rectify the defects in her notice of appeal by then, or risk having her notice of appeal struck out.

8. The applicant did not take any steps prior to the hearing on 18 August 2023 to address the defects in her notice of appeal.

9. The applicant attended by telephone on 18 August 2023, and sought a further adjournment.  She said that she had arranged to get some legal assistance to help her address the defects in her notice of appeal.  An order was made that she file and serve any application for leave to appeal, any amended grounds of appeal, and any affidavit in support of her applications for leave to appeal or for an extension of time by 15 September 2023.  The matter was adjourned to 22 September 2023.  The applicant was warned that if she did not file appropriate documentation and attend the next hearing, the matter may be dealt with summarily.

10. The applicant did not file any further documentation.  Earlier this morning, being the morning of the hearing, she sent an email to my chambers stating that she had experienced a medical emergency, and had had a very stressful 24 hours.  She sought an adjournment of the hearing.  The applicant was told that she needed to attend the hearing, but could do so by telephone.

11. The applicant attended today’s hearing by telephone.  She elaborated upon her medical emergency, as well as her more general difficulties in regularising and progressing her appeal.  Essentially, she relied upon the matters she had identified in very general terms in her earlier affidavit.  She sought an adjournment.

12. The respondent opposed any further adjournment of the matter, and sought an order that the applicant’s notice of appeal be struck out.

13. Given the history of this matter, I do not consider it appropriate to grant any further adjournment, or otherwise provide the applicant with a further opportunity to address the defects in her notice of appeal.  Whilst I understand, and have some sympathy for, the difficulties the applicant has experienced as an unrepresented litigant who is struggling with her health, and with the demands placed upon her by the litigation in which she is involved, there comes a time when any further adjournment or indulgence would be contrary to the interests of justice.  Whilst the Court is generally slow to dispose of a matter in a summary way, particularly given the nature of the matters at stake in these proceedings, I am satisfied that the applicant has been given ample opportunity to address the defects in her notice of appeal.  I am also not confident that the applicant will, at any time in the near future, be in a position to address those defects.

14. In considering the potential prejudice to the applicant it is relevant that the underlying order that she seeks to have set aside is an interim order, and that she still has an opportunity to resist a final order being made.  Indeed, the trial in respect of those final orders is listed to commence on 4 October 2023.  Whilst it is anticipated that the trial may be interrupted, and may not finish for a few months, it appears unlikely that this appeal could be prepared, listed, heard and determined ahead of that trial concluding.

15. In all the circumstances, I have determined that it is appropriate to strike out the applicant’s notice of appeal under r 212.5(2)(b).