CC & JC v Department of Human Services
[2003] VSC 134
•2 May 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 5049 of 2003
| CC and JC (by his Litigation Guardian, CC) | Plaintiffs |
| v | |
| DEPARTMENT OF HUMAN SERVICES and OTHERS | Defendants |
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JUDGE: | HABERSBERGER J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 and 29 April 2003 | |
DATE OF JUDGMENT: | 2 May 2003 | |
CASE MAY BE CITED AS: | CC v Department of Human Services | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 134 | |
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INFANT – Children and Young Persons Act 1989 – Interim Protection Order made by the Children’s Court – Stay pending appeal to County Court – Delay rendering right of appeal nugatory – Protection concerns if stay granted.
COUNTY COURT – Statutory power to grant stay pending appeal – s 86(1) of the Magistrates’ Court Act 1989 – Inherent power to grant stay pending appeal
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APPEARANCES: | Counsel | Solicitors |
| For the first Plaintiff | Dr D Neal | Nicole Amad |
| For the first Defendant | Ms A Mendes Da Costa | Maria Rosa |
| For the fourth Defendant | Ms L Steiner | Lucy Steiner |
HIS HONOUR:
The Proceeding
By an originating motion dated 15 April 2003, the plaintiffs, CC and his son JC (by his litigation guardian CC), sought by way of primary relief an order staying an interim protection order in respect of J made by the second defendant, the Children’s Court of Victoria, constituted by her Worship Ms Blashki, on 4 April 2003, and an order that the interim accommodation order in respect of J made by the Children’s Court, constituted by his Worship Mr Wynn-Mackenzie, on 13 December 2002, which expired on 4 April 2003 be reinstated and extended to 5 May 2003. Alternatively, the plaintiffs sought an order in the nature of certiorari quashing the order of the third defendant, the County Court of Victoria, constituted by her Honour Judge Rizkalla, made on 14 April 2003 dismissing the application for a stay of the interim protection order on the ground that the County Court had no jurisdiction to make the order sought, and an order in the nature of mandamus requiring the County Court to hear and determine the application for a stay according to law. Alternatively, declarations were sought that the County Court did have jurisdiction to grant a stay of the interim protection order pursuant to s 86 of the Magistrates’ Court Act 1989 (“the MCA”) or an inherent power of the County Court.
The application was supported by an affidavit of Nicole Amad, Mr C’s solicitor, sworn on 15 April 2003 and an affidavit of Joseph Gorman, J’s solicitor, sworn 16 April 2003. Two affidavits in opposition to the application were sworn on 24 April 2003 by Lucy Claire Steiner, the solicitor for Mrs L, the maternal grandmother of J. Mrs L is the fourth defendant in this proceeding. Three reports dated 10 January, 18 January and 3 March 2003 respectively by protective workers employed by the Department of Human Services (“the Department”), the first defendant in this proceeding, were tendered by Dr Neal of counsel, who appeared for Mr C. Because of an objection raised by Ms Steiner, who appeared for Mrs L, to Dr Neal also appearing for J, Dr Neal, without conceding the validity of the objection, confined himself to appearing on behalf of the father.
The Decision of the Children’s Court
The order made by the learned Magistrate, Ms Blashki, on 4 April 2003, was that J, who is nearly six years old, be placed on an interim protection order with his maternal grandmother for a period of three months subject to a number of specified conditions.
The evidence before me discloses that J was born on 10 May 1997 as a result of an intermittent defacto relationship between Mr C and Ms B. In approximately May 1998 J was placed with his maternal grandmother for about a month, then returned to his mother for about a month until she gave birth to her second child, when J was again placed with his maternal grandmother. In late July 1998, J was placed in the care of Ms F, the paternal grandmother. On 14 September 1998 an order was made placing J on a 12 month custody to Secretary order pursuant to s 99 of the Children and Young Persons Act 1989 (“the Act”). In about February 2000 J was returned to his paternal grandmother pursuant to another protection application where he remained until about September 2000 when he apparently returned to his father’s care. J’s mother died from a heroin overdose on 5 July 2000.
The relevant recent history is that J was taken into safe custody on 11 December 2002 pursuant to notifications to the Department on 13 and 30 October and 9 December 2002, which variously alleged that J had been exposed to domestic violence by his father against his then defacto, that J was at risk because of his father’s excessive use of alcohol and drugs and that J had said that his father had kicked him in the head. On 11 December 2002 an interim accommodation order was made by a bail justice placing J with his maternal grandmother. Pursuant to s 75(2) of the Act, that order only remained in force until a protection application was heard by the Children’s Court on the next working day.
On 12 December 2002, the protection application was heard in the Melbourne Children’s Court by way of a submissions contest, with no evidence being called. Each of Mr C, Ms F, Mrs L, J and the Department were separately represented at that hearing. Mr C sought to have J placed on an interim accommodation order with him. Ms F supported that application, but in the alternative argued that he should be placed with her. The Department submitted that J should be placed in an interim accommodation order with Mrs L. It opposed the placement of J with Ms F given her history of relationships characterised by domestic violence, her failure to co-operate with the Department, her level of aggression throughout the protective investigation and her denial of protective concerns and J’s disclosure of physical assault by his father. The Magistrate, Mr Levine, ordered that J be placed in the care of his paternal grandmother, on the ground that she had cared for him previously. A similar order was made by another Magistrate, Mr Wynn-Mackenzie, on the following day.
The contested hearing of the protection application began before Ms Blashki on 3 March 2003 and occupied nine hearing days although it was only listed for five days. Once again, Mr C, Ms F, Mrs L, J and the Department were all represented at the hearing The protection application was based on the grounds found in s 63(c) and (e) of the Act. They are as follows:
“(c)the child has suffered, or is likely to suffer, significant harm as a result of physical injury and the child’s parents have not protected, or are unlikely to protect, the child from harm of that type;
…
(e)the child has suffered, or is likely to suffer, emotional or psychological harm of such a kind that the child’s emotional or intellectual development is, or is likely to be, significantly damaged and the child’s parents have not protected, or are unlikely to protect, the child from harm of that type.”
The learned Magistrate gave her decision on 4 April. In her 17 pages of Reasons for Decision, Ms Blashki summarised the positions adopted by the various parties. She said that the Department sought an interim protection order for three months with J to remain in the care of his paternal grandmother and that in the meantime the father should undergo various courses and tests. According to the learned Magistrate, at the commencement of the hearing, Mr C would not consent to proof of the protection application and did not consent to an interim protection order but would consent to an interim accommodation order for three months with J returning to his care immediately. However, his final submission was that he would accept proof of the protection application under s 63(e) of the Act, but not s 63(c) and that he would consent to an interim protection order for three months with J to be returned to his care immediately. Ms F supported the differing positions of her son, both initially and at the time of final submissions. On behalf of J, it was said that he wanted to live with his father. Proof of the protection application was not agreed to, but if proved it was said by his legal representative that he would agree to an interim protection order for three months or to a supervision order. Mrs L consented to proof of the protection application under both s 63(c) and (e) of the Act and would support an interim protection order. She supported the Department’s position that J not be returned to his father at present. Although she left it to the Court to decide whether placement with either grandmother was appropriate, she expressed concern about the criminal history of the paternal grandmother and the current inadequate housing for J.
The learned Magistrate briefly summarised the evidence of the witnesses called by the parties. She noted that neither Mr C nor his mother gave evidence and stated that therefore their submissions were not “capable of being tested”. Her Worship commented favourably on Mrs L’s performance under vigorous cross-examination. The learned Magistrate then referred to the matters she had to have regard to as required by s 87 of the Act. Her reasons continued:
“On the evidence that I have heard I am satisfied that it is appropriate for me to find the Protection Application proved on grounds Section 63(c) and (e) of the Children and Young Persons Act 1989.
I find further that at this time it is not appropriate for J to return to the care of his father. Mr C has previously accepted conditions of the Court to address issues of drugs and alcohol; violence and anger management and parenting issues, but to date there is no evidence before the Court that any of these matters have been addressed sufficiently for the Court to be satisfied that J should be placed in his care.
At the time that J was placed in the care of his paternal grandmother the Court was not provided with sufficient evidence of her living conditions, her current partner nor her criminal history.”
Her Worship then referred to and quoted extensively from a memorandum dated 31 January 2003 which was sent by Litsa Kyriakou, Protective Intervention Team, Child Unit to Gabrielle Levine, Regional Director, Western Metropolitan Region with a copy to Beth Allen, Manager, Protective Services, Western Metropolitan Region. The learned Magistrate then concluded her reasons by stating:
“At this time I am satisfied that there are protective concerns if J were to remain in the care of his paternal grandmother.”
Earlier Applications for a Stay
On the same day that the learned Magistrate delivered her reasons for judgment, Mr C filed a notice of appeal to the County Court of Victoria pursuant to s 116(1)(c) of the Act. Application was then made to the Magistrate for a stay of her orders pending appeal. The learned Magistrate refused the stay on the basis that she had heard over nine days of contested evidence and in her reasons she had “made it very clear” her findings in the matter.
Ms Steiner, who appeared for Mrs L, submitted to me that the application for the stay was not made by Mr C and therefore that he had not done everything he should have before coming to this Court. However, the transcript shows that the first time the stay was mentioned before her Worship, it was sought by Mr McGregor “on behalf of the paternal grandmother and father”. Therefore, it seems to me that it is not relevant whether the later passage in the transcript supporting Mr McGregor’s submission was correctly attributed to Ms Schierman, who appeared for J, or whether in fact it was made by Ms Amad, who appeared for Mr C.
Later on the same day, an oral application was made to Balmford J in the Practice Court for an order staying the operation of the Magistrate’s order. Balmford J refused the application principally, according to Ms Amad’s affidavit, on the ground that she did not have sufficient material before her to enable her to determine the application. In particular, her Honour had neither the Magistrate’s reasons for making the interim protection order nor her reasons for refusing the stay. Ms Steiner submitted to me that as a result of the unsuccessful application to Balmford J, Mr C had to show changed facts and circumstances before he was entitled to make a second application. I ruled that from what I had been told about the application to Balmford J, including the absence of any order on the Court file dismissing the application, that there had been no hearing on the merits such as to require the applicant to show changed facts and circumstances. Further, I ruled that, in any event, putting before the Court the Reasons for Decision of the learned Magistrate and the transcript of the stay application and the subsequent fixing of the date of the appeal to the County Court as 29 September 2003 were changed facts or circumstances.
On 14 April 2003, an application to stay the Magistrate’s order pending the determination of the appeal by the County Court was made to her Honour, Judge Rizkalla. The learned Judge dismissed the application on the ground that it was not within the meaning of the words “on the hearing of an appeal” contained in s 86 of the MCA and therefore that the County Court did not yet have jurisdiction to exercise the power referred to in s 86(1(c) of that Act and on the ground that the County Court did not have inherent jurisdiction to grant a stay pending the hearing and determination of an appeal to it. As previously mentioned, her Honour fixed the hearing of the appeal for 29 September 2003, on an estimate of ten days.
Should a Stay be granted?
The application for a stay of the interim protection order was opposed by Ms Steiner on behalf of Mrs L and by Ms Mendes da Costa on behalf of the Department. Both Ms Steiner and Ms Mendes da Costa submitted that there should be no interference with the learned Magistrate’s order pending the appeal. In a helpful submission, Ms Mendes da Costa took me through the relevant provisions of the Act. She pointed out that an interim protection order can be made when the Court is satisfied not only that the child is in need of protection but:
“that it is desirable, before making a protection order, to test the appropriateness of a particular course of action.” (s 110(1)(b) of the Act).
An interim protection order cannot be extended and only one such order can be made (s 110(3) of the Act). The types of orders that can be made at the expiration of an interim protection order are to be found in s 85(1)(a) of the Act.
Dr Neal submitted that this Court had power to grant a stay either in the exercise of its supervisory jurisdiction over inferior tribunals or its parens patriae jurisdiction.[1] He submitted that the grant of a stay did not require the Court to find error of law in the inferior court’s refusal to grant the stay. Rather this Court should consider the stay application in accordance with well established principles. Dr Neal submitted that generally the grant of a stay requires the applicant to show that special or exceptional circumstances exist. In this respect, he placed greatest emphasis on the fact that unless a stay were granted, the father’s right of appeal would be rendered nugatory because the interim protection order will have expired before the appeal can be heard.[2] Even if the appeal were eventually heard, he submitted that it would not be possible to restore the parties to their former position because by then J will have resided with his maternal grandmother for three months and a further order may have been made by the Children’s Court at the expiration of that period.
[1]See Secretary, Department of Health and Community Services v JWB (1992) 175 CLR 218 at 258 per Mason CJ, Dawson, Toohey and Gaudron JJ, at 286 per Brennan J and at 293 per Deane J.
[2]See, for example, Tait v The Queen (1962) 108 CLR 620; Federal Commissioner of Taxation v The Myer Emporium Ltd [No 1] (1986) 160 CLR 220; Jennings Construction Limited v Burgundy Royal Investments Pty Ltd (1986) 161 CLR 681; Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [No 2] (1998) 72 ALJR 869.
It is a matter of great regret that, due to the pressure of work on the County Court, it has not been possible to give the appeal the priority which it deserves. There is little point in the legislature providing a right of appeal, as s 116(1)c) of the Act expressly does in respect of interim protection orders, if the County Court is not adequately resourced to enable it to hear the appeal, even a lengthy appeal, before the expiration of the three month period of the interim protection order.
On the other hand, Ms Steiner submitted, with some validity, that the argument on behalf of Mr C had to some extent exaggerated the notion of the appeal being rendered nugatory. She pointed out that the appeal was not just against the disposition part of the order. It was also an appeal against the finding that J was in need of protection, which if successful, would mean that all of the protection orders would fall way and Mr C would be able to have J once again reside with him. Ms Steiner also pointed out that it was highly unlikely that the appeal against the protection finding would succeed given the final position adopted by the father and the paternal grandmother in accepting proof of the protection application under s 63(e) of the Act. Ms Steiner therefore queried why the appeal could not be limited to the disposition aspect with the consequential shortening of the appeal and the likelihood of an earlier date for such an appeal. Despite her invitation to do so, Dr Neal declined at that stage to limit the scope of the appeal.
Further, I have some real concerns about granting a stay in that in many ways it would be in effect allowing the appellant to win the appeal without actually having to argue the case. This is because it seems to me that Mr C would not be unhappy with the maintenance of the status quo until the hearing of the appeal in September because it would strengthen his ability to argue in respect of disposition that, even if J should not return to live with him, he should remain with his paternal grandmother, with whom he would by then have been living for at least nine months, rather than being placed with his maternal grandmother. In my opinion, these concerns to some extent counterbalance the unfairness to an appellant of not being able to argue an appeal against the making of an interim protection order before the expiration of the three month period of that order. But this is not to take away from the necessity of hearing such appeals as quickly as possible and at the earliest opportunity.
Dr Neal mounted an impressive argument that the best interests of the child would be served by maintaining the status quo pending the appeal and minimising the potential for dislocation. He submitted that the draft case plan for J prepared by the Department’s officers was still the appropriate aim. This was that the goal should be:
“to build a positive safe and stable relationship between J and his father in order for J to be reunited with the father.”
However, this would require Mr C to complete urine drug and alcohol screens and to attend a Drug and Alcohol assessment and follow through with treatment, to attend an anger management course and to attend a parenting course. The report by the psychologist with the Children’s Court clinic also stressed the importance of assisting the maintenance of the bond between J and his one remaining parent. Dr Neal submitted that J’s relationship with his father, who lived in Melton, would be better advanced if he lived with his paternal grandmother in Sunshine rather than with his maternal grandmother in Clayton, that residential dislocation would be minimised if he continued to live with Ms F as he had since 13 December 2002 and for significant periods earlier in his life, and that schooling dislocation would be minimised if he remained at his current school. Dr Neal argued that if the stay were granted and the appeal were successful, then there would be minimum dislocation to J. On the other hand, if the appeal were unsuccessful, then the interim protection order could commence or continue at that time.
The one matter which had the potential to undercut Dr Neal’s submission was, in my opinion, the finding by the learned Magistrate that she was satisfied that at the time there were “protective concerns if J were to remain in the care of his paternal grandmother”. Dr Neal conceded that if there was a concern that the granting of a stay would expose the child to an immediate risk of physical harm, then the balance of convenience would very clearly point against the making of an order, However, he submitted that the learned Magistrate’s finding was unsupported by the evidence and illogical. He pointed out that no reasons were given for this finding by the learned Magistrate other than to quote extensively from the memorandum from Ms Kyriakou to Ms Levine referred to above. He further submitted that the Department had not expressed any concern about J living with his paternal grandmother in the period since the making of the interim accommodation order in December 2002 or during the hearing and that the learned Magistrate had not expressed any concern about this state of affairs either during the hearing or when she reserved her decision. It was therefore illogical to then make such a finding. (I should note that on a careful reading of the learned Magistrate’s Reasons for Decision, it seemed to me that Dr Neal was mistaken in one aspect of his criticism of the Reasons. As I understood his submission, he criticised the Magistrate for making the statement contained in the last paragraph on page 15 of the Reasons. However, her Worship was there still quoting from the memorandum from Ms Kyriakou and in fact the quotation continues until the end of the first sentence in the second paragraph of page 16, although the closing quotation marks are missing).
Ms Steiner referred to the passage in one of her affidavits to the effect that there was evidence before the Magistrate that Ms F had allowed J to stay at his father’s house in breach of the interim accommodation order and that this evidence was not refuted or challenged by Ms F or Mr C. Ms Steiner submitted that this evidence and Ms F’s criminal record showed an inability or unwillingness to comply with court orders. This would be, one would think, important and damaging evidence given that the whole purpose of the interim accommodation order was to remove J from his father’s residence in order to protect him from possible harm. Ms Steiner therefore submitted that there was ample justification for the Magistrate’s finding.
Unfortunately, the learned Magistrate has not really explained the basis for the finding she made in respect of the paternal grandmother. One is therefore left to speculation to some extent. However, it seems to me that there was evidence which could have formed the basis of the Magistrate’s finding. One can also see how it was that this issue did not surface until the Magistrate reached her decision and completed her reasons. It would have been premature to have acted immediately that evidence was given before hearing what Ms F or Mr C might have to say about the allegation. Of course, neither gave evidence. It would also have been arguably premature to have acted on that evidence until the whole of the nine days of evidence had been carefully considered and analysed as the learned Magistrate did in her reasons. This finding would also explain the way in which the learned Magistrate disposed of the stay application to her.
Therefore, after much anxious consideration, it seems to me that I must conclude that Dr Neal’s attack on the learned Magistrate’s finding has not been made out. Given that finding of the learned Magistrate, I consider that it would be quite wrong for the Court to grant a stay of her order. In my opinion, to do so would be to ignore completely one of the “paramount considerations” of the Act (see s 87(1A)), namely, to “have regard to the need to protect children from harm” (s 87(1)(aa)). Of course I recognise that, as Dr Neal submitted, Magistrates (and Judges) can be wrong, but that erroneous finding, if it be such, will have to be set aside on appeal. In the circumstances, I am not prepared to stay the Magistrate’s order made after she had had the benefit of a nine day hearing concerning the welfare of J. I therefore refuse to stay the interim protection order in respect of J made by the learned Magistrate on 4 April 2003.
This means that it is unnecessary to reach a final conclusion on the submission by Ms Steiner that this Court had no power to make a consequential order concerning the disposition of J pending the appeal. Such an order would be necessary if a stay of the interim protection order were granted as otherwise there would be nothing to prevent J being returned to his father’s custody, which is not yet appropriate. Ms Steiner submitted that the exclusive jurisdiction given to the Children’s Court by s 17(1) of the Act prevented this Court from making any such order. She referred to the decision of Beach J in Webb v Johns[3] concerning s 16(1) of the Children’s Court Act 1973, which has some similarity with s 17(1) of the Act. His Honour held in that case that:
“ … once the Children’s Court is seized of a care and protection application, it is my opinion the Court has no jurisdiction to interfere in the matter.”[4]
[3][1983] 1 VR 739.
[4]At 746.
However, his Honour was there dealing with competing applications at first instance, whereas in this case I would be concerned with the making of appropriate orders pending an appeal having granted a stay of the Children’s Court order. It therefore seems to me, with respect, that the decision of Beach J is not apposite. Further, Dr Neal referred me to the unreported decision of Gray J in the Children of God[5] case where his Honour provided in his order for all of the potential difficulties discussed in the hearing before me.
[5]Adair and Ors v Millar and Ors, Unreported, 21 May 1992.
The Power of the County Court to Grant a Stay
Dr Neal submitted that the County Court had both a statutory power and an inherent power to grant a stay of the order made by the Children’s Court. Section 116(6) of the Act applies with any necessary modifications much of the criminal appeal provisions of the MCA. Section 85 of the MCA provides that the appeal must be conducted “as a re-hearing” and s 86(1) of the same Act states:
“(1)On the hearing of an appeal under section 83 or 84, the County Court –
(a) must set aside the order of the Magistrates’ Court; and
(b)may make any order which the County Court thinks just and which the Magistrates’ Court made or could have made; and
(c)may exercise any power which the Magistrates’ Court exercised or could have exercised.”
Dr Neal submitted that one of the powers that the Children’s Court could have exercised and therefore that the County Court could exercise pursuant to s 86(1(c) of the MCA was the power to stay the whole or any part of the order made by the Children’s Court under s 116(6A) of the Act. Dr Neal accepted that the County Court’s jurisdiction to exercise a power under s 86(1)(c) arose “on the hearing of an appeal”. He submitted that the phrase meant when the County Court commenced to hear matters in relation to the appeal and that as the application for the stay on 14 April 2003 constituted the commencement of the hearing of the appeal the County Court had jurisdiction to stay the order.
The wording of s 86(1) of the MCA is not elegant, in my opinion. Paragraphs (a) and (b) refer to what the County Court must or may do by way of orders. Rather than that happening “on the hearing of an appeal”, one would normally refer to that hearing “after the hearing of an appeal” or “having determined an appeal”. By the same token, if paragraph (c) is to be given the broad scope attributed to it by Dr Neal’s submission, one would expect that it would be prefaced by a phrase such as “on the filing of an appeal”. Therefore, it is possible that the phrase “on the hearing of an appeal” has been inelegantly used in an attempt to cover the different situations. Thus, the power to exercise any power which the Magistrates’ Court could have exercised would be available to the County Court at a preliminary hearing in relation to the appeal, such as the application for a stay. The contrary view would severely limit the power given by s 86(1)(c) because it would only operate during the actual hearing of the appeal.
However, there are other indications in the MCA that the phrase “on the hearing of an appeal” simply means the actual hearing of the appeal. For example, the County Court is not required “on the hearing of an appeal” to warn the appellant of the possibility of making a sentencing order more severe than that made by the Magistrates’ Court (s 86(1AA) of the MCA). If the appellant fails to appear at the time listed for “the hearing of the appeal”, the County Court may proceed “to hear and determine the appeal” in the appellant’s absence (s 86(3A) of the MCA). Finally, where the County Court has heard the appeal in the absence of the appellant, the application for a re-hearing must state why the appellant did not appear “at the hearing of the appeal” (s 89A(4) of the MCA). In the various phrases quoted above the word “hearing” must mean in my opinion, the actual hearing and not some preliminary hearing in relation to the appeal. Therefore, on the basis that a word or phrase used several times in the same part of a piece of legislation should have the same meaning throughout, I am forced to the conclusion that the powers contained in s 86(1)(c) of the MCA can only be exercised at the actual hearing of the appeal itself and not before.
Dr Neal noted that in s 117(3) and (9) of the Act, specific provision was made for the Supreme Court to grant a stay of an order subject to an appeal, on a question of law, to this Court. He submitted that it was not necessary for the legislature to make special provision in the case of an appeal to the County Court, because of the powers conferred by s 86(1)(c) of the MCA. However, my construction of that provision has deprived his submission of any force. The result is that there is no statutory provision, in my opinion, giving the Court Court jurisdiction to grant a stay of an order of the Children’s Court prior to the actual hearing of the appeal itself.
In the alternative, Dr Neal submitted that the County Court had an inherent power to grant a stay in order to protect the processes of the Court and to prevent injustice. He referred to the unreported decision of Ormiston J (as his Honour then was) in Ninety-Fourth Highwire Pty Ltd v State Electricity Commission of Victoria[6], where his Honour quoted with approval from the decision of the New South Wales Court of Appeal in Tringali v Stewardson Stubbs & Collett Ltd.[7] In that case, the Court, consisting of Wallace P, Jacobs and Asprey JJ, said:
“… there can be no doubt that this Court has an inherent jurisdiction to endeavour to ensure that the pursuit of its ordinary procedures by litigants does not lead to injustice and for this purpose to grant in the exercise of its discretion a stay of proceedings, whether permanent or temporary, upon such conditions or terms (if any) as may seem appropriate in the particular circumstances and that this is a jurisdiction which may be exercised at any stage of the proceedings where it appears to be demanded by the justice of the case. However, it must always be borne in mind that a stay of proceedings should not be lightly granted. The question always remains whether in any particular case the jurisdiction should be exercised and whether it should be exercised before the trial or during the conduct of the trial by the trial judge.”[8]
[6]Unreported, 31 August 1991. BC 9100628 at 12.
[7](1996) 66 SR (NSW) 335.
[8]At 334.
One of the authorities referred to by the Court of Appeal was the following passage from the judgment of Alderson B in Cocker v Tempest:
“The power of each Court over its own process is unlimited; it is a power incident to all Courts, inferior as well as superior; were it not so, the Court would be obliged to sit still and see its own process abused for the purpose of injustice. The exercise of the power is certainly a matter for the most careful discretion.”[9]
This is an important statement of principle in this context because as a Court of statutory jurisdiction, the County Court has no jurisdiction beyond that which has been given to it by legislation. However, I do not consider that the absence of any specific statutory power to stay an order means that the County Court cannot protect its own process from resulting in injustice. Dr Neal gave as an example the acceptance by the High Court of Australia in Dietrich v The Queen[10] that the County Court had the inherent power to stay criminal proceedings that would result in an unfair trial. The County Court has statutory jurisdiction to hear appeals against the making of an interim protection order by the Children’s Court (s 116(1)(c) of the Act). In my opinion, the County Court has an inherent power to stay such an order pending the hearing of an appeal in order to prevent an injustice to a party to the appeal. In granting a stay in an appropriate case, it would not, in my opinion, be exceeding its limited jurisdiction.
[9](1841) 7 M & W 501 at 503-4; 151 ER 864 at 865.
[10](1992) 177 CLR 292.
However, it follows from my earlier conclusion that I do not consider that the application for a stay made to the County Court on 14 April 2003 was an appropriate case in which to exercise that inherent power to protect its own process. Therefore, I see no reason for making an order quashing the orders made by her Honour Judge Rizkalla. Dr Neal submitted that I should do so, at least so that the order for costs made against the appellants would be quashed. However, it seems to me that her Honour correctly dismissed the application for a stay, albeit for different reasons, and that the costs order against the appellants was an appropriate exercise of her Honour’s discretion. I therefore refuse the application for orders in the nature of certiorari or mandamus.
I will hear the parties on the question of what orders it is appropriate to make and on the question of costs.