CM v Secretary, Department of Communities and Justice

[2021] NSWCA 244

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	CM v Secretary, Department of Communities and Justice [2021] NSWCA 244
Hearing dates:	28 September 2021
Date of orders:	12 October 2021
Decision date:	12 October 2021
Before:	Macfarlan JA; Brereton JA; McCallum JA
Decision:	Summons dismissed with costs in favour of the first respondent.
Catchwords:	COURTS AND JUDGES – application for recusal rejected by District Court judge – summons seeking judicial review of decision dismissed
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998 (NSW), s 91
Cases Cited:	CM v Minister for Families, Communities and Disability Services [2020] NSWCA 347
Category:	Principal judgment
Parties:	CM (a pseudonym) (Applicant) Secretary, Department of Communities and Justice (First Respondent) District Court of New South Wales (Second Respondent) The Child (Third Respondent)
Representation:	Counsel: Self-represented (Applicant) M Anderson (First Respondent) Submitting appearance (Second Respondent) Submitting appearance (Third Respondent) Solicitors: Crown Solicitor’s Office (First Respondent) Legal Aid NSW (Third Respondent)
File Number(s):	2021/238567
Publication restriction:	Statutory prohibition on publication or broadcast arising under s 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW)
Decision under review	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Date of Decision: 18 August 2021 Before: Olsson SC DCJ File Number(s): 2021/187593

Judgment

1. THE COURT:  By summons seeking judicial review filed in this Court on 25 August 2021 the applicant, referred to by the pseudonym CM, seeks an order to the effect that Olsson SC DCJ be precluded from hearing an appeal by CM fixed for hearing in the District Court for seven days commencing on 22 November 2021 and an order permitting CM to attend that hearing, and any related directions hearings, in person, as distinct from by audio-visual link (AVL) or telephone.

2. CM is the mother of a child in respect of whom care proceedings were commenced in the Children’s Court in 2020. The history of the proceedings to 21 December 2020 is described in this Court’s judgment of that date in CM v Minister for Families, Communities and Disability Services [2020] NSWCA 347. The Children’s Court proceedings referred to in [2] of that judgment as then part-heard were completed on 26 May 2021, with the judgment of Magistrate Virgo being delivered on 10 June 2021. Her Honour held that there was “no realistic possibility of restoration of the child to the Mother within a reasonable period of time” and that “[p]ermanency planning for the child has been appropriately and adequately addressed”.

3. On 23 June 2021, CM commenced an appeal in the District Court against Magistrate Virgo’s decision pursuant to s 91 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the “Care Act”). Following a directions hearing in the District Court before Judge Olsson on 7 July 2021, CM filed a notice of motion seeking that her Honour recuse herself from further hearing the matter. Subsequent directions hearings nevertheless occurred before her Honour who formally dismissed the recusal motion on 18 August 2021. Her Honour fixed the appeal hearing to commence on 22 November 2021 but did not identify the judge who will hear the matter.

4. In support of her application to this Court, CM filed lengthy written submissions in the form of affidavits. Neither they, nor CM’s oral submissions, identify any, even arguable, basis upon which Judge Olsson ought to recuse herself from further hearing the proceedings in the District Court. Although CM’s written submissions to this Court, at one point at least, use the word “bias”, in oral address CM said that she did not think that her application that Judge Olsson not hear the District Court proceedings was properly described as based on bias or apprehended bias. This was an appropriate concession because there is nothing in the matters to which CM refers in her submissions which would give any support to a suggestion of bias or apprehended bias on her Honour’s part. Instead, CM appears to believe that she has a right to choose the judge to hear her District Court proceedings, or at least to veto a particular judge. If that is her belief, it is undoubtedly misguided.

5. The reasons given by CM for seeking the disqualification of Judge Olsson are without merit. They include the following.

6. First, when CM appeared before Judge Olsson in 2020 on another aspect of CM’s proceedings, CM formed the view that her Honour “did not seem to know Children and Young Person Act very well, and sought the advice from DCJ lawyer” (sic).

7. Secondly, CM makes the unintelligible contention that because she was unsuccessful in prior proceedings before Magistrates Duncombe and Virgo and Justice Rees of the Equity Division of the Supreme Court (described by CM as “Ms Duncombe”, “Ms Virgo” and “Ms Rees”), she would be accused of being “the most unintelligent person ever” if she accepted “Ms Olsson” as her judge.

8. Thirdly, between 23 June 2021 and 11 August 2021, CM made numerous complaints against Judge Olsson to the Judicial Commission of NSW. CM contends that in these circumstances, Judge Olsson would have a conflict of interest if she heard CM’s appeal. Complaints by a litigant against a judge, which are unsubstantiated, and indeed unidentified as to their contents, cannot entitle the litigant to have the judge disqualified from hearing the litigant’s cases. To hold otherwise would effectively entitle the litigant to veto judges at will. We add that there is nothing at all in the material placed by CM before this Court which suggests that she has any justifiable complaint against Judge Olsson.

9. Fourthly, CM contends that Judge Olsson does not have the appropriate background and expertise to hear CM’s appeal but in doing so she quotes a summary of a different judge’s experience and mistakenly attributes it to Judge Olsson. In any event, it is not for a litigant to set a standard of experience or expertise for a judge to attain.

10. We have referred to these matters by way of illustration of the lack of substance in CM’s case. They are not exhaustive of the matters referred to in her material but it is unnecessary to refer further to it as it does not contain any matter even arguably supportive of her summons. But even if there were anything in any of CM’s complaints, the occasion for the judge, who as the Care List judge has so far been engaged only in case management, to consider recusal from the final hearing has not yet arisen. Such applications ought to be made in the first instance to the judge in question, and the occasion for it will not arise until the final hearing. The application to this Court, even if there were any basis for it, would be premature.

11. A further matter raised by CM’s summons in this Court is her entitlement to appear in person at the forthcoming appeal hearing in the District Court (and at any prior directions hearings). It has not however been suggested that the Court has yet determined whether she may do that. No doubt that will be determined having regard to the District Court’s COVID-19 pandemic policy operative at the time. In the absence of any decision having been made, there is no relevant order for this Court to review. In any event, no basis has been shown for intervention by this Court in the District Court’s administrative arrangements, even if that were possible. In this respect, the applicant is being treated no differently from any other litigant. Although she submits that her ability to represent herself and make herself understood is compromised if on AVL, she engaged with this Court by AVL without apparent difficulty, and this Court had no difficulty in understanding her.

12. For these reasons CM’s summons seeking judicial review is dismissed with costs in favour of the first respondent. No order for costs is made in favour of the second or third respondents as they submitted to such orders as the Court might make.

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Decision last updated: 12 October 2021