Burton v Secretary, Department of Communities and Justice

[2020] NSWCA 68

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Burton v Secretary, Department of Communities and Justice [2020] NSWCA 68
Hearing dates:	17 April 2020
Date of orders:	17 April 2020
Decision date:	17 April 2020
Before:	Meagher JA; Leeming JA.
Decision:	1. Dismiss the summons seeking leave to appeal filed 28 January 2020. 2. No order as to costs.
Catchwords:	APPEAL – application for leave – challenge to decision to refuse summary dismissal of proceedings – no appellable error in decision – leave refused
Legislation Cited:	Administrative Arrangements (Administrative Changes – Public Service Agencies) Order 2019 Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 43, 105 Constitution Act 1902 (NSW), ss 50A, 50D Court Suppression and Non-publication Orders Act 2010 (NSW), s 16 Judiciary Act 1903 (Cth), s 78B
Cases Cited:	Burton v Secretary, Department of Family and Community Services [2019] NSWCA 21 Lazarus v Independent Commission Against Corruption (2017) 94 NSWLR 36; [2017] NSWCA 37 Secretary, Department of Family and Community Services v Burton [2018] NSWSC 371 Secretary, Department of Family and Community Services v Burton (No 2) [2019] NSWSC 1865
Category:	Principal judgment
Parties:	Paul Robert Burton (Applicant) Secretary, Department of Communities and Justice (Respondent)
Representation:	Counsel: Applicant in person M England (Respondent)   Solicitors: Crown Solicitor’s Office (Respondent)
File Number(s):	2020/00027810
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Citation: [2019] NSWSC 1865 Date of Decision: 20 December 2019 Before: Robb J File Number(s): 2017/214962

Judgment

1. THE COURT: On 17 April 2020, shortly after hearing full argument from the parties, we ordered that the summons seeking leave to appeal be dismissed, but with no order as to costs. Having regard to another matter in the list, we reserved our reasons. These are our reasons for those orders.

2. Mr Paul Robert Burton seeks leave to appeal from an interlocutory decision in pending proceedings in the Equity Division declining his application that the proceedings be summarily dismissed: Secretary, Department of Family and Community Services v Burton (No 2) [2019] NSWSC 1865. His application for leave was filed a few days after the 28 day period. Mr Burton explained how that came about, and the respondent, who had previously acknowledged the absence of any prejudice, withdrew any opposition based on delay. The matter was determined on its merits.

3. It is not necessary for present purposes to summarise the litigation involving Mr Burton in any detail. It is partly described by the primary judge at [7]-[20]. In May 2017, a child was taken from his parents pursuant to an order issued by the Secretary under s 43(1) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) on the basis that he was “at immediate risk of serious harm”. Mr Burton and another man, Mr Andrew Katelaris, were present when this occurred. The child was subsequently placed in the parental responsibility of the Minister by order of the Children’s Court.

4. Shortly thereafter, the Secretary commenced proceedings seeking interlocutory and final injunctive orders restraining the two men from publishing, inter alia, material which revealed the identity of the child, the departmental caseworkers and treating doctors. Relief was granted, including by the primary judge: Secretary, Department of Family and Community Services v Burton [2018] NSWSC 371. An application for leave to appeal was dismissed: Burton v Secretary, Department of Family and Community Services [2019] NSWCA 21.

5. However, in late 2017, Mr Burton and Mr Katelaris were charged with offences under s 16(1) of the Court Suppression and Non-publication Orders Act 2010 (NSW) and s 105(2) of the Children and Young Persons (Care and Protection) Act. In accordance with statements made in the judgment of the Court of Appeal, the proceedings in the Equity Division have been, in the words of the primary judge “indefinitely informally stayed part-head, pending the completion of the criminal prosecutions against Mr Burton and Mr Katelaris”: at [20].

6. It was common ground when the matter was heard that three of the ten charges originally laid against Mr Burton have been dropped, as have some of those laid against Mr Katelaris. We were told that Mr Burton still stands charged with four offences of publication contrary to the prohibition in s 105, and three offences based on orders made under the Court Suppression and Non-publication Orders Act on 31 May 2017. The matter is presently paused following the distribution of notices pursuant to s 78B of the Judiciary Act 1903 (Cth) following Mr Burton’s challenge to the validity of s 105.

7. On 12 August 2019, Mr Burton applied, orally, for the proceedings to be dismissed. The primary judge refused that application. That is the decision from which leave is sought to appeal.

8. At all stages, so far as appears from the materials available to this Court, Mr Burton and Mr Katelaris have been unrepresented.

9. The second defendant, Mr Katelaris, appears to have been present when Mr Burton’s oral application was made, although the transcript does not record him making any submissions. As a party to the proceedings which Mr Burton says should have been dismissed, he should have been joined to the application in this Court. However, we are satisfied (on the basis of emails provided to the Court shortly before the hearing at our request) that he is aware of the proceedings and does not wish to participate.

10. Mr Burton’s proposed grounds of appeal largely reflect submissions he made before the primary judge.

11. First, Mr Burton submits that “The Secretary of FACS was abolished on July 1st by royal assent”, and that the pending proceedings in the Equity Division were abandoned by the plaintiff who from 1 July 2019 ceased to exist.

12. This is a reference to the Administrative Arrangements (Administrative Changes – Public Service Agencies) Order 2019 which created a new department, the Department of Communities and Justice.

13. Governments commonly alter, rename and on occasion abolish government departments. Section 50D(1) of the Constitution Act 1902 (NSW) authorises this:

“The Governor may, by an administrative arrangements order—

(a) establish, abolish or change the name of any Public Service agency, or

(b) transfer a part (or all parts) of a Public Service agency to another Public Service agency,

and substitute or amend Schedule 1 to the Government Sector Employment Act 2013 for that purpose or any other purpose authorised by that Act.”

14. A “Public Service agency” is defined to include a government department: s 50A. When the power conferred by s 50D(1) is exercised, provision is commonly made to deal with the effect of the reorganisation. Clause 11(3) of the Administrative Order addresses this squarely, and provides that:

“[t]he person holding the office of Secretary of the Department of Family and Community Services when that office is abolished .... is taken to have been appointed as the Secretary of the Department of Communities and Justice”,

and that

“a reference in any document to the Secretary of the Department of Family and Community Services is, without limiting subclause (4), to be construed as a reference to the Secretary of the Department of Communities and Justice.”

15. Even if that were not so, s 50D(3) of the Constitution Act 1902 (NSW) provides that:

“If the Governor abolishes a Public Service agency under this section, the Public Service agency to which the Governor transfers all parts of the abolished agency (or all parts other than specified parts) is taken for all purposes to be the successor of the abolished agency.”

16. Thus, when the former Department of Family and Community Services was abolished, the Department of Communities and Justice is taken for all purposes to be its successor.

17. Consistently with this, although Mr Burton’s summons purported to join the “Secretary Family and Community Services” (an office which, on his submission, does not exist), the Secretary, Department of Communities and Justice has filed a notice of appearance, and the proceedings in this Court are so styled.

18. Mr Burton advances various submissions directed to the ineffectiveness of what has occurred. Without conveying any disrespect, the submissions are difficult to follow. None casts any doubt upon the conclusion of the primary judge. In his oral submissions, after being directed to the terms of cl 11(3) of the order, Mr Burton maintained that the reference to “any document” in the clause could not include a court document, because that would contravene the separation of powers. We do not accept that submission. The words bear their natural meaning. Even if the separation of powers found in Chapter III of the Commonwealth Constitution applied at the State level (which it does not: see Lazarus v Independent Commission Against Corruption (2017) 94 NSWLR 36; [2017] NSWCA 37 at [106]), there is no difficulty in the Executive altering the title of an office holder and deeming references to the former office to be references to the renamed office.

19. Mr Burton’s second proposed ground is that the Children’s Court proceedings have long since concluded. But that does not mean that legislative provisions forbidding publication of names and material which will identify children in proceedings in that Court (such as s 105 of the Children and Young Persons (Care and Protection) Act) cease to apply, or that there is no longer a basis for final injunctive relief.

20. Mr Burton’s third proposed ground turned on the fact that the child was no longer in New South Wales. It was common ground that the child was no longer in New South Wales. However, that does not of itself prevent the continued operation of either the statutory prohibition upon publication, or the availability of orders under the Court Suppression and Non-publication Orders Act. It is relevant to the discretion to grant final injunctive relief, but it is not of itself a reason for summarily dismissing the proceedings.

21. Mr Burton’s fourth proposed ground is to challenge the informal stay of proceedings pending the criminal prosecution. During oral submissions, he maintained that he had repeatedly sought to have the litigation heard and determined. That is not reflected in the transcript, which makes it plain that his application was for summary dismissal, as opposed to bringing the informal stay to an end and the matter going to final hearing. His submissions on 12 August 2019 commenced, answering the judge’s question of what orders he sought:

“What I want you to do is to dismiss the matter today once you hear these four grounds and reasons.”

22. His submissions concluded:

“For all these reasons, I believe this matter must be dismissed.”

23. It may be at other times Mr Burton has sought to have the informal stay discharged, but if so the Court was not taken to where that occurred and they do not appear to be in the materials made available to this Court. Ms England acknowledged that there was nothing preventing Mr Burton from making such an application, even if formerly he had consented to or acquiesced in the informal stay, although if and when such an application is made, it will be important for Mr Burton (and Mr Katelaris) to bear in mind the possibility of any statement by him being available for use by the Crown in the prosecution.

24. This proposed ground is not a proper basis for a conclusion that the primary judge erred in declining to dismiss the proceedings.

25. Mr Burton’s fifth, sixth, seventh and eighth grounds record dissatisfaction with the legislation and executive action which has occurred, and assert that the system of justice has been brought into disrepute. In part this is a complaint against the statutory prohibition upon publication, and in part against the removal of a child from the child’s parents. Mr Burton is entitled to his views. However, they do not disclose error by the primary judge in declining to dismiss the proceedings summarily.

26. Nothing in Mr Burton’s written or oral submissions suggests there is any reason to doubt the order made by the primary judge declining to dismiss the proceedings.

27. For those reasons, and in light of the fact that the respondent did not seek costs, we merely ordered that the summons seeking leave to appeal be dismissed.

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Decision last updated: 17 April 2020