Collier & Anor v Chief Executive Officer and Director-General of the Department of Child Safety Queensland & Anor

[2009] NSWSC 229

CITATION:	Collier & Anor v Chief Executive Officer and Director-General of the Department of Child Safety Queensland & Anor [2009] NSWSC 229
HEARING DATE(S):	26 March 2009
JUDGMENT DATE :	26 March 2009
JURISDICTION:	Equity Division
JUDGMENT OF:	Palmer J
EX TEMPORE JUDGMENT DATE:	26 March 2009
DECISION:	Summons dismissed with costs.
CATCHWORDS:	CROSS VESTING – Plaintiffs applied to NSW Supreme Court to transfer to itself proceedings in Queensland Court of Appeal – Court has no jurisdiction to do so.
LEGISLATION CITED:	Child Protection Act 1999 (Qld) – s 61B(2), s 117 Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) – s 5(2)
CATEGORY:	Principal judgment
PARTIES:	Robert John Collier (First Plaintiff) Marion Louise Collier (Second Plaintiff) Chief Executive Officer and Director-General of the Department of Child Safety Queensland (First Defendant) Separate Representative Damien Carter (Second Defendant)
FILE NUMBER(S):	SC 1580/09
COUNSEL:	Mr and Mrs Collier (Plaintiffs, in person) Dr J.G. Renwick (First Defendant) Ms L. Donnelly (Sol) (as agent for Second Defendant)
SOLICITORS:	In person (Plaintiffs) Court Services Unit, Department of Child Safety Queensland (First Defendant) Slade Manwaring (Second Defendant)

1580/09 Collier & Anor v Chief Executive Officer and Director-General of the Department of Child Safety Queensland & Anor

JUDGMENT – Ex tempore

26 March, 2009

1 This is an application by the Plaintiffs to transfer to this Court proceedings concerning the custody of their two grandchildren which have been commenced in Queensland and are now the subject of an appeal pending in the Court of Appeal in Queensland. The application is said to be made in accordance with s 5(2)(b) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth). The proceedings which the Plaintiffs seek to transfer were brought in the Children's Court of Queensland. The Plaintiffs are parties to those proceedings. 2 The Children's Court made an order under s 61B(2) of the Child Protection Act 1999 (Qld) on 20 March 2008 granting custody of the children to the Chief Executive Officer and Director General of the Queensland Department of Child Safety. 3 The Plaintiffs then appealed under s 117 of the Act to the Children's Court of Queensland, constituted by a single judge. A court so constituted has power to hear appeals from a magistrate in the Children's Court. On 2 January 2009 the Plaintiffs' appeal was heard by Judge Rafter SC. On 27 January 2009 the Plaintiffs sought leave to appeal from Judge Rafter's decision to the Court of Appeal of Queensland. 4 On 19 February 2009 the Plaintiffs commenced these proceedings in the Supreme Court of New South Wales seeking a transfer of the proceedings in the Court of Appeal of Queensland to the Equity Division of this Court and consequential relief. 5 On 20 March 2009, the Plaintiffs applied to the Queensland Court of Appeal for a stay of the proceedings in that Court pending a cross-vesting application to be made to this Court in the proceedings commenced on 19 February. The application for a stay was refused by the President and the leave application was listed for hearing on Friday 1 May. 6 The Plaintiffs now move this Court for an order transferring the proceedings in the Queensland Court of Appeal to this Court. Section 5(2)(b) of the Jurisdiction of Courts (Cross-vesting) Act provides:
“(2) Where:
…
(b) it appears to the first court that:
(i) the relevant proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of another State or Territory and it is more appropriate that the relevant proceeding be determined by that other Supreme Court;
(ii) having regard to:
(A) whether, in the opinion of the first court, apart from this Act and any law of a State relating to cross vesting of jurisdiction, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the first court and capable of being instituted in the Supreme Court of another State or Territory;
(B) the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the State or Territory referred to in sub-subparagraph (A) and not within the jurisdiction of the first court apart from this Act and any law of a State relating to cross vesting of jurisdiction; and
(C) the interests of justice;
it is more appropriate that the relevant proceeding be determined by that other Supreme Court; or
(iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or Territory;
the first court shall transfer the relevant proceeding to that other Supreme Court.”

For the purposes of this case, “the first court” means the Supreme Court of Queensland.

7    The Plaintiffs' application must fail for want of power in this Court. The only way in which the proceedings in the Queensland Court of Appeal can be cross-vested to this Court pursuant to s 5(2)(b) of the Act is if an application to is made to the Queensland Supreme Court and is granted. That has not happened. To the contrary, the Queensland Court of Appeal, having been informed of the application to this Court, has confirmed the hearing of the leave application before it. 8    Mrs Collier, who appears in person with Mr Collier, says that this Court is in truth "the first court" referred to in s 5(2)(b) of the Act because in 1993 she commenced proceedings number 3579 of 1993 in this Court which concerned the custody and care of her daughter. She says that the Queensland proceedings, which concern the care and custody of her daughter's two children, arrises directly from proceedings that she commenced in this Court in 1993. I cannot accept this submission. 9 The proceedings which were commenced in 1993 in this Court by Mrs Collier were dismissed by consent on 7 October 1993. Those proceedings were then brought to an end. The only relevant proceedings which can be the subject of an application under s 5(2) is the proceeding which is still on foot, namely, the proceeding in the Queensland Court of Appeal. 10 The Plaintiffs, who are now residents of New South Wales, also rely on s 117 of the Constitution. They say that the laws of Queensland and the Courts of Queensland discriminate against them on the basis that they are residents in New South Wales. Even if that were so – and I do not accept that it is – that circumstance would not confer jurisdiction on this Court to transfer the Queensland proceedings to this Court under s 5(2) Jurisdiction of Courts (Cross-vesting) Act . 11 The Summons will therefore be dismissed. 12 I order that the Plaintiffs pay the costs of the First Defendant on the party/party basis. I am satisfied that the Second Defendant, who is the children's Separate Representative, notified the Plaintiffs prior to the commencement of the proceedings that this application was doomed to failure and that the Second Defendant would seek costs against the Plaintiffs on the indemnity basis. Such indeed proved to be the case. I think it is proper in those circumstances to order that the Plaintiffs pay the Second Defendant's costs on the indemnity basis. 13 Mr Collier has submitted that no costs should be made against the Plaintiffs in these proceedings because the proceedings were essentially concerned with the welfare and custody of children. He says, and it is indeed true, that often costs orders are not made in proceedings involving the custody of children because such costs orders can often inflame the situation between those competing for custody of the children, to the detriment of the children. That is particularly the case where an application is made on reasonable grounds and the question is whether costs of that application ought to be awarded on the party/party basis. 14 This is a different situation. There are proceedings in Queensland which have been continuing through two Courts and are now in the Queensland Court of Appeal. They directly concern the custody and welfare of the children. The proceeding which has been commenced in this Court, although arising out of a concern for the welfare of the children, is really a completely discrete matter and concerns a technical question of law, essentially the construction and application of s 5(2)(b) of the Jurisdiction of Courts (Cross-vesting) Act . 15    In my opinion, as I have noted earlier, the application of the Plaintiffs was doomed to failure because this Court had no jurisdiction to make the order. The welfare of these children will be decided by the Queensland Courts. This application should not have been brought in this Court. Because of the unusual circumstances of this case, it is appropriate to make adverse cost orders against the Plaintiffs. 16    For those reasons, I order that the Plaintiffs pay the First Defendant's costs of the proceedings on the party/party basis. I order that the Plaintiffs pay the Second Defendant's costs of the proceedings on the indemnity basis.
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