Certain Children v Minister for Families and Children (Ruling No 1)

[2017] VSC 153

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2017 00409

BETWEEN:

CERTAIN CHILDREN BY THEIR LITIGATION GUARDIAN SISTER MARIE BRIGID ARTHUR	Plaintiffs
And
MINISTER FOR FAMILIES AND CHILDREN & ORS	Defendants

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JUDGE:	JOHN DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 FEBRUARY 2017
DATE OF RULING:	20 FEBRUARY 2017 (Revised 7 June 2017)
CASE MAY BE CITED AS:	CERTAIN CHILDREN v MINISTER FOR FAMILIES AND CHILDREN & ORS (RULING NO. 1)
MEDIUM NEUTRAL CITATION:	[2017] VSC 153

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PRACTICE AND PROCEDURE – Trial Preparation – Disagreement as to estimate and scope of issues at trial – Plaintiffs’ application for an urgent trial date – Whether trial ready to proceed – Trial date set.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr B Walters QC with Mr M Albert and Mr A McBeth	Human Rights Law Centre
For the Defendants	Ms M J Richards SC with Mr J Bayly	Victorian Government Solicitors Office
For the Victorian Equal Opportunity and Human Rights Commission as intervenor	Ms K Evans	Victorian Equal Opportunity and Human Rights Commission

HIS HONOUR:

1. In this proceeding, the plaintiffs sought an urgent trial date. The defendants opposed the proceeding being set down for trial before May 2017. Appropriate directions to prepare the proceeding for trial and for the conduct of the trial were also sought but in respect of those matters there was not significant disagreement between the parties.

1. The trial estimate is 5 days, although there was argument about a proper estimate by reference to the issue of whether the plaintiffs were really seeking, on judicial review, to run a merits review. The defendants contended that the trial ought to be much shorter, no more than 2 days.

1. My diary can accommodate a 5 day hearing commencing either on 3 March, 2 April or 20 April, with May being problematic. In that context, the plaintiffs asked that the trial be fixed for 3 March, while the defendants submitted that 20 April was appropriate.

1. In the proceeding, the plaintiffs seek relief directed at two sets of administrative acts. First, on 29 December 2016, the Governor in Council made orders establishing the Grevillea unit, a unit located at Barwon Prison, as a remand centre pursuant to s 478(a) of the Children, Youth and Families Act2005 (CYF Act) and as a youth justice centre pursuant to s 478(c) of the CYF Act. Secondly, in a period that has not yet been precisely identified, commencing no earlier than 22 December 2016 and completing prior to the issue of the proceeding on 8 February 2017, delegates of the second defendant made decisions pursuant to s 484(1) of the CYF Act to transfer each of 7 plaintiffs to the Grevillea unit. The plaintiffs seek habeas corpus (although not on an interim basis), declarations of invalidity, orders in the nature of certiorari quashing the Orders in Council and the transfer decisions and declarations that those Orders and decisions were unlawful under s 38(1) of the Charter of Human Rights and Responsibilities Act 2006.

1. The plaintiffs allege that the governing consideration for all decisions under the CYF Act is ‘the rights and interests of children in detention’. Further, it is contended that each plaintiff had entitlements to the rights set out in s 481(1)(c) and s 482(2) of the CYF Act and entitlements to not be subject to any of the prohibited actions set out in s 487 of the CYF Act. The plaintiffs contended that the capacity of the Grevillea unit to fulfil the governing consideration and all of the entitlements operates as a condition for, or is a jurisdictional fact which must objectively and/or as a matter of legal obligation exist at the time of, the relevant exercise of power. Further, the plaintiffs contended that the capacity of the Grevillea unit to serve the statutory purpose of providing for the care and welfare of detained children was likewise a condition or a jurisdictional fact.

1. The plaintiffs then contended that the Grevillea unit was not capable of serving each or any of the governing consideration, the relevant entitlements or the statutory purpose. The plaintiffs’ originating motion identifies 11 particulars or features of the Grevillea unit or operations within it that, they contend, make good that proposition, or will make good that proposition at trial. These allegations may require several days of evidence, which the plaintiffs propose will come principally from themselves.

1. This is the first ground of challenge to the Orders and transfer decisions, namely that the condition or jurisdictional fact did not exist to permit the lawful exercise of the relevant power.

1. Staying with the Orders in Council, the second ground of challenge is that the Orders, when made, were materially influenced by the purpose of responding to a charged presumed criminality, or the imposition of a detriment, or to create the appearance of punishing the plaintiffs because of a disturbance at the Parkville youth justice precinct in November 2016.[1]

   [1]This ground was later abandoned during the trial of the proceeding.

1. The third ground of challenge to the Orders in Council is that they are incompatible with Charter rights.

1. Returning to the transfer decisions, the second ground of challenge to the transfer decisions is that they are inherently unlawful because the Orders in Council were unlawful. The third ground of challenge to the transfer decisions is that the decision-maker failed to afford procedural fairness to the plaintiffs.

1. Finally, the transfer decisions are also alleged to be incompatible with Charter rights because the Secretary of the Department failed to give proper consideration to such rights when making the transfer decisions.

1. Although there was some discussion at the directions hearing about the interrelationship between the issues raised in this proceeding and those raised in the earlier proceedings before Garde J and in the Court of Appeal, I do not propose to say anything about that interrelationship here.

1. The plaintiffs submitted that there were three bases for an urgent trial. The first basis is that on the allegations that they advance the continued detention of the plaintiffs at the Grevillea unit is unlawful, self-evidently a basis for a speedy resolution of their claims. The second basis is that the legal issues, and many of the factual issues, are the same as those that arose in the earlier proceedings about which the parties are fully familiar. Consequently each party ought be able to prepare quickly and neither party would be prejudiced by an urgent trial timetable. The third basis put appears to be a restatement of the second basis. The matter has been before the court a number of times when the court has ‘dealt with it in great haste’ and without any complaint of disadvantage by any of the parties.

1. The defendants submitted that two general observations about the plaintiffs’ claims could be made. Firstly, the court is being invited to engage in an impermissible merits review, and, secondly, the plaintiffs are seeking to avoid well-established limitations on judicial review by pleading jurisdictional facts in relation to the Orders in Council and the transfer decisions and by calling in aid the Charter. Unlike the earlier proceedings no complaint is now made that the Minister and the Governor in Council failed to take relevant considerations into account.

1. On the question of an urgent trial, the defendants submitted, first, that the claim for habeas corpus was a distraction. Secondly, the plaintiffs have delayed in seeking relief. The plaintiffs have been preparing this application since 30 December 2016, a period of approximately six weeks, and now unfairly seek to restrain the defendants to a week or two to prepare for a hearing. Thirdly, the plaintiffs want to run a merits review case, and if they establish that they are entitled to run their case in that fashion, the defendants must respond to the evidence that will extend beyond an analysis of the material before the decision-maker. In respect of the transfer decisions, that analysis must be undertaken on an individual basis and would necessarily involve a large amount of work.

1. The plaintiffs are yet to provide either proper detailed allegations or particulars, despite conceding possession of the relevant documents in respect of some of those decisions. The generality of the plaintiffs’ allegations denies to the defendants the opportunity to understand the claims made against those decisions which makes an urgent trial inappropriate. Further, disputes about discovery can be anticipated and such disputes cannot readily be resolved because of the generality of the plaintiffs’ allegations. Orders for discovery in the proceeding ought to be specific and targeted. It is premature to determine how that process might be undertaken.

1. It must be the case that the plaintiffs’ material is incomplete. The defendants have neither pleadings nor a complete set of affidavits identifying the plaintiffs’ evidence. It presently appears that there will be considerable factual dispute about events occurring in a dynamic environment. Without proper management, the trial will take some time. The proceeding will not be ready for an urgent hearing until the issues for evidence and determination have been identified with sufficient specificity.

1. The plaintiffs disputed the defendants’ contention that the proceeding would be conducted as a merits review, and I do not propose to consider that issue prior to trial, except to say that the plaintiffs put their claim, irrespective of its characterisation, on a basis that needs to be carefully alleged in sufficient detail to achieve a degree of particularisation that will enable the overarching purpose of civil litigation to be met. The plaintiffs also disputed that they had delayed commencing the proceeding. Although the plaintiffs’ submissions in support of that proposition were not entirely convincing, the delay was not significant and any delay between commencement of the proceeding and the trial will be of about the same proportion.

1. When the application was made, the parties agreed to be referred to a judicial mediator to attempt to resolve the dispute. That mediation was ongoing. Although I initially deferred setting the proceeding down for trial pending mediation, there is no reason why the parties cannot prepare for trial while mediation continues.

1. I was not persuaded by the second or third arguments put by the plaintiffs, while the primary ground loses its sting through the six week delay in commencing the proceeding, irrespective of practical difficulties. That period was not used in a way that enabled the plaintiffs to submit that the proceeding was actually ready for trial when issued. I accept the submission that the issues need to be defined with greater specificity to permit an efficient and targeted discovery process and a cost effective trial. I see no need to delay the trial until May and I am not persuaded that the defendants require that much time to prepare the proceeding for trial.

1. Balancing all of the relevant considerations, I fix the trial of the proceeding to commence on 3 April 2017 on an estimate of 5 days.

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