Colquhoun v District Court of New South Wales
[2014] NSWCA 460
•22 December 2014
Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Colquhoun v District Court of New South Wales [2014] NSWCA 460 Hearing dates: 12 December 2014 Decision date: 22 December 2014 Before: Beazley P at [1];
Barrett JA at [2];
Leeming JA at [3]Decision: Summons dated 10 February 2014 dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: CHILD WELFARE - children in care of State - care order made by Children's Court - pending appeal to District Court - challenge to interlocutory and procedural decisions by District Court - summons seeking judicial review by Supreme Court - no judicially reviewable error shown - summons dismissed Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 9, 61, 69, 78, 79, 86, 90, 91, 99, 105
District Court Act 1973 (NSW), s 127
Supreme Court Act 1970 (NSW), s 69
Uniform Civil Procedure Rules, rr 2.1, 2.3, 36.16Cases Cited: Colquhoun v Children's Court [2013] NSWSC 65
Druett v Director-General of Community Services [2001] NSWCA 126
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337
Khalifeh v District Court Judge Job (1996) 85 A Crim R 68
Markisic v Commonwealth of Australia [2010] NSWCA 273
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427
Muldoon v Church of England Children's Homes Burwood [2011] NSWCA 46; 80 NSWLR 282
Spruill v Director-General of the Department of Community Services [2001] NSWCA 413
Zepinic v Chateau Constructions (Aust) Ltd (No 2) [2014] NSWCA 99Category: Principal judgment Parties: Darren Colquhoun (Applicant)
District Court of New South Wales (First Respondent)
Director-General, Department of Family and Community Services (Second Respondent)
DF (Third Respondent)
Anne Mowbray (Independent Legal Representative)Representation: Counsel:
Applicant (In person)
D Ward (Second Respondent)
Third Respondent (In person)
P Guterres (Fourth Respondent)
Solicitors:
Crown Solicitor (Second Respondent)
File Number(s): 2014/41852 Publication restriction: Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) the names of the 3rd Respondent and the children have been suppressed. Decision under appeal
- Before:
- Olsson DCJ; Truss DCJ
- File Number(s):
- 2013/225071
Judgment
BEAZLEY P: I have had the advantage of reading in draft the reasons of Leeming JA. I agree with his Honour's reasons and the order he proposes.
BARRETT JA: I also agree with Leeming JA. I would only add that the Father's apparent desire to see his District Court appeal brought to a hearing and determined is called into question by his pursuit in this Court of minor procedural points devoid of merit. If he in truth wishes to obtain a decision by the District Court, he must concentrate his efforts on ways of achieving constructive cooperation that causes the real issues to be distilled and presented for that court's decision.
LEEMING JA: Over 23 days in February and May 2013, an application made by the Director-General in respect of two children was heard by a specialist magistrate in the Children's Court. Magistrate Murphy concluded that there was no realistic possibility of their being restored to the care of either of their parents, and placed them in the Minister's care until they turned 18. The father of one of the children appealed to the District Court. That appeal has not been heard. However, the father is dissatisfied with the procedural steps that have occurred to date, and commenced proceedings in this Court seeking for those steps to be reviewed, and to prevent the two judges of the District Court who have been dealing with the appeal to date from having any further involvement in his appeal. The father has at all times been unrepresented.
I have concluded that there is no basis for this Court to intervene, and that the summons should be dismissed. The reasons which follow explain the procedural steps in this Court, summarise the nature of this Court's limited jurisdiction, and explain what has occurred in the Children's Court and in the undetermined appeal before the District Court. They then summarise and resolve each of the submissions advanced by the father.
This Court's supervisory jurisdiction
The applicant (Father) filed a summons in this Court on 10 February 2014. There have been delays in readying the matter for hearing. The summons was set down for hearing on 8 August 2014, but that date was vacated on the Father's application for reasons given by Barrett JA on 31 July 2014. The Father had not complied with the Court's directions for the filing of submissions. He had explained that he was involved in related Family Court proceedings set down for hearing in September, which, when coupled with the ordinary requirements of daily life, had prevented him from devoting the time and effort to the proceedings which he had wished. He also said that he had applied for legal aid, and expected a decision in the next fortnight.
The Father continued to be unrepresented at the new hearing date of 12 December 2014. He served two amended summonses dated 10 October 2014. His initial summons named the District Court as a respondent; the amended summonses named each of Olsson DCJ and Truss DCJ individually. The former approach is correct: the orders which the Father challenges are orders of the Court, not of the individuals who constitute it: see for example Khalifeh v District Court Judge Job (1996) 85 A Crim R 68 at 72 where Sheller JA observed that this Court had repeatedly pointed out that the joinder of the individual judicial officer is not appropriate. The best course is for the original summons to be regarded as having been amended to reflect the substantive grounds raised in the two proposed amended summonses. It is appropriate to deal with the Father's case in this Court on its merits, but naturally subject to the limits of this Court's jurisdiction.
As Barrett JA explained on 31 July 2014, the summons seeks judicial review of procedural and interlocutory orders made in an undetermined appeal in the District Court of New South Wales. No appeal lies to this Court from the District Court's orders. The right of appeal conferred by s 127 of the District Court Act 1973 (NSW) is confined to orders or judgments in an action, and it is well established that an appeal to the District Court from the Children's Court is not an action within the meaning of that section: Druett v Director-General of Community Services [2001] NSWCA 126; Spruill v Director-General of the Department of Community Services [2001] NSWCA 413 at [24] and see Muldoon v Church of England Children's Homes Burwood [2011] NSWCA 46; 80 NSWLR 282 at [8].
Accordingly, the jurisdiction invoked by the Father is this Court's supervisory jurisdiction, regulated by s 69 of the Supreme Court Act 1970 (NSW). It is, broadly speaking, necessary for the Father to demonstrate jurisdictional error or error of law on the face of the record. Relief is discretionary.
It is necessary to say something of the nature of the proceedings in the Children's Court, and of this Court's jurisdiction, in order to address the Father's application.
Factual background in the Children's Court
Section 105(1)(b) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (Care Act) prevents the publication of the names of the children. Accordingly, at the commencement of the hearing, an order to that effect was made.
CF is the son of the Father and the third respondent (Mother) who shares her son's surname and cannot be named. At the end of 2010, CF lived with his mother and half-brother, JF. JF is not the son of the applicant Father. The reasons of Olsson DCJ record that:
"[JF] is currently just over 3 years old and he presently lives at [a children's hospital] with a diagnosis of severe developmental delay due to non-accidental brain injury. He is completely reliant on adult caregivers for his daily activities which will probably continue for the rest of his life."
In late 2010 or early 2011, CF was taken into the care of the Director-General. Section 34 of the Care Act provides for the Director-General to take "whatever action is necessary to safeguard or promote the safety, welfare and well-being of the child" in the event that "the Director-General forms the opinion, on reasonable grounds, that a child or young person is in need of care and protection".
In late 2010, the Director-General commenced proceedings in the Children's Court at Port Kembla, and on 5 January 2011 an interim care order was made (under s 69 of the Care Act) allocating parental responsibility (s 79) to the Minister of the Department of Family and Community Services, pending the determination of the application for a care order (s 61).
Before being set down for final hearing in the Children's Court on 5 February 2013, the matter had come before the Children's Court some 35 times. On the day before it was listed to be heard, an application was made to the Supreme Court to prevent the magistrate who had been managing the proceedings from hearing it any further. Following orders made in February 2013, the proceedings to determine the care order for CF were heard before another magistrate over 23 days, until the completion of proceedings on 23 May 2013: see Colquhoun v Children's Court [2013] NSWSC 65. It may be noted that Harrison J said this (at [29]):
"Magistrate Blewitt has conducted the proceedings with a high degree of skill and in my opinion with an even higher degree of patience. Any emotionally charged litigation is usually difficult for a court to manage. Unrepresented litigants are often in the same category. A combination of these two factors usually heightens the difficulties confronting the court and increases the problems that require close attention and monitoring at all times. Magistrate Blewitt is to be commended for his management of this case in the circumstances."
Magistrate Blewitt had put in place a contingency plan against the possibility that the Father's application succeeded, such that the final hearing could take place before another magistrate, which it did.
The decision of the Children's Court
Final orders were made by the Children's Court on 5 July 2013, after a hearing lasting 23 days in February and May 2013, assigning parental responsibility of both JF and CF to the Minister until each child attained 18 years of age.
The Magistrate's reasons are lengthy. It is not necessary to summarise them here. It is sufficient to state that they reflect a considered approach to resolving a highly-charged dispute.
The Magistrate's orders accorded with the care plan proposed by the Director-General, as was required to be submitted before the making of final orders (s 78 of the Care Act). The care order was supported by the independent legal representative of CF and JF, appointed under s 99 of the Care Act. It was opposed by both the Father and the Mother. However, the Magistrate's reasons record (p 2) that:
"The parents consented to a finding that the children were in need of care on 1 August 2011 without admissions."
No specific contact orders were made under s 86 of the Care Act, but the orders provided for CF to have contact with his parents separately, biannually, according to his wishes and supervised by the Director-General. (In fact, it may be that the Father has had, more recently, more contact with CF than was contemplated by those orders; the evidence as to this was unclear. Nothing relevant to the proceedings in this Court turns on this.)
The appeal to the District Court
An appeal lies to the District Court pursuant to s 91 of the Care Act, which is in these terms:
"(1) A party to proceedings who is dissatisfied with an order (other than an interim order) of the Children's Court may, in accordance with the rules of the District Court, appeal to the District Court against the order.
(2) An appeal is to be by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence on which the order was made, may be given on the appeal.
(3) Without limiting subsection (2), the District Court may, instead of taking fresh evidence, decide to admit as evidence the transcript of proceedings before the Children's Court and any exhibit tendered during those proceedings.
(4) In addition to any functions and discretions that the District Court has apart from this section, the District Court has, for the purposes of hearing and disposing of an appeal, all the functions and discretions that the Children's Court has under this Chapter or Chapter 6.
(5) Without limiting the generality of subsection (4), the District Court may confirm, vary or set aside the decision of the Children's Court.
(6) The decision of the District Court in respect of an appeal is taken to be the decision of the Children's Court and has effect accordingly.
(7) Subject to any interlocutory order made by the District Court, an appeal does not affect the operation of the order appealed against or prevent the taking of action to implement that order.
(8) The provisions of Chapter 6 apply to and in respect of the hearing of an appeal under this section in the same way as they apply to and in respect of the hearing of a care application under that Chapter."
Both the Father and the Mother separately appealed to the District Court. The Father filed his appeal on 23 July 2013. He did not originally join the Mother. The transcript in the Application Book records that he was directed to do so, and shortly thereafter did. The Mother's application, and how it was addressed at a directions hearing before Truss DCJ in October 2013, is the subject of one of the grounds for judicial review, and is addressed in more detail below.
By Notice of Motion filed on 1 October 2013, the Father sought a stay of the care order, as well as contact with CF every fortnight for two hours, pending the outcome of the appeal.
Section 61 provides that "[a] care order may only be made on the application of the Director-General, except as provided by this Chapter". It was not suggested that there was any exception of which the Father could avail himself.
On 3 December 2013, following a hearing lasting around half a day with the father participating by telephone, Olsson DCJ dismissed the Father's Notice of Motion, on the basis that her Honour lacked the jurisdiction to make the orders sought. Her Honour considered that the interim orders sought by the Father were in effect an application for care orders, which could only be sought by the Director-General or on an application under s 90. Importantly, her Honour went further and said that:
"[I]t seems to me that if a Children's Court magistrate was of the view that care orders ought to be made, it would be illogical if those care orders, having been made, could then be suspended pending the outcome of an appeal. I do not believe that the legislation is set up to facilitate that sort of stay or that sort of interim order but even if that were not the case, I could not be satisfied on the evidence before me that it is appropriate to alter or suspend the orders made by the Children's Court."
Her Honour then explained that her conclusion on this alternative basis was based on the reasons of the Magistrate, and the facts that (a) the Father and CF had not lived together and had had no relationship for the first three and a half years of CF's life, (b) orders were made in July 2010 but not acted upon until November 2010 and contact visits did not commence until 6 April 2011, and (c) contact continued for around 12 months thereafter, but ceased because CF became stressed. Her Honour concluded that contact had not been regular or frequent such that "even if I had jurisdiction to grant the orders sought, I am not satisfied on the evidence that it would be appropriate to do so".
On 17 September 2013, the Mother filed a Notice of Motion seeking, inter alia, to be made a party to proceedings. On 9 October 2013, Truss DCJ declined to join her to the appeal, but directed that she file and serve a cross-summons, noting that leave would need to be sought at the hearing of the appeal in order to proceed on them out of time. The Father's summons, the Mother's cross-summons and application for leave have subsequently been case-managed with a view to their being heard together, which is evidently desirable as a matter of efficiency and so as to ensure that all parties are bound by the Court's orders.
On 11 December 2013, further orders were made by Truss DCJ, putting in place a timetable for the hearing of the District Court proceedings. The substantive order was for the parties to exchange their evidence by the end of January 2014.
On 10 February 2014, a summons was filed in this Court, with two further amended summonses served on 10 October 2014, directed to each of the District Court judges personally. The relief claimed in the summons directed to Olsson DCJ was as follows:
"1. An order that all orders made by Judge OLSSON be quashed.
2. The Notice Of Motion be reheard with orders made for Birthdays and Christmas contacts for 2014 instead of 2013.
3. The Appeal lodged by the Father in Nowra District Court be heard at Nowra District Court. This is to be the same for all direction hearings.
4. All District Court directions and orders be sent to the Father by way of mail and a back up copy be emailed.
5. An Order that all transcripts and Submissions made in Port Kembla's Children Court be made available to the father for use in his appeal.
6. That no dates for any hearings be given on the same day the Father has hearings in other court.
7. That the Father be granted supervised access to his Son 4 hrs each Saturday at the Father's address until the completion of the appeal, so if the father is successful it will make for an easy transition for [CF] into the Father's care.
8. [CF] to be presented to the Father's Physiologists used in the Port Kembla Children's Court for an up dated parenting assessment and placement assessment after 8 contact visits occur prior.
9. That no future hearings be conducted without adequate notice be given to the self-represented Father and time given to the Father to seek legal advice.
10. I ask this application can be amended once transcripts from the District Court are made available.
11. I ask for orders that Judge Olsson no longer can hear any matters related to Darren Colquhoun.
12. I ask for all costs associated with this application."
The proposed amended summons in relation to Truss DCJ was materially identical, except that it sought an order that the "[Mother's] Cross Summons be refused as her time for appeal to the District court was well out of time".
The Father addressed the Court by reference to matters raised in his affidavits and in a two page written submission, and a four page draft titled "Grounds of Challenge of Darren Colquhoun". These reasons follow a slightly different order of topics, but address all of the substantive matters raised by the Father orally and in writing.
Venue
The Father says that the appeal will take some substantial period of time to be heard, and he wishes for that to occur in Nowra. He says it is not possible for him to run his farm if the appeal is heard in Sydney, while, if it is heard in Nowra, he can run the farm before and after court.
However, no decision has as yet been made as to the venue of the appeal. The Director-General has stated that he would not object to the matter being transferred to the Wollongong District, that it was a matter for the Court but that he doubted that the Nowra District Court had the capacity to hear and determine the matter given the likely length of the hearing. So far, there have been short case management hearings conducted by a Judge of the District Court sitting in Sydney with the Father participating by telephone, in addition to the hearing of the Father's motion. On occasion it has been said that a decision as to venue will be made when a realistic estimate of how long the appeal will take to be heard can be made (the Father has not as yet filed his evidence). There is no judicially reviewable error in the course which has hitherto been taken in delaying determining the venue of the hearing of the appeal.
The Father also says that, the matter having been commenced by him in Nowra, procedural and interlocutory hearings must take place in Nowra until some order is made relocating it. This is not the occasion fully to analyse the relationship between the express and implied powers of the District Court under its Act, and the Uniform Civil Procedure Rules. It is sufficient to say that the Father has advanced no submission to call into question the power, supported inter alia by the general case-management powers, conferred by UCPR r 2.1 and 2.3, to hold directions in the matter in a specialist list in Sydney.
Copies of the orders
The Father has consistently asked to be given "official" copies of the District Court's procedural orders, and by mail, not merely by email. His motion sought an order that that take place, and it is an aspect of his proceeding for judicial review.
It is a matter for the Court to determine whether, and if so, by what means, it will provide copies of orders to a litigant including an unrepresented litigant. There is no entitlement to a litigant to be provided with sealed copies of the Court's orders (although it is open to the Father, no differently from any other litigant, to obtain formal copies of the Court's orders from the Court's registry).
Moreover, the impression gained from reading what has occurred is that the District Court, and the Director-General have attempted to provide considerable assistance to the Father through providing copies of the procedural orders. After his summons was filed in this Court, the Registrar assembled an application book, paginated it, and sent copies to all parties. He also prepared copies of an Orange Folder containing the parties' submissions and proposed amended summonses. All parties (including the Mother, who is also unrepresented) referred in their written submissions to the paginated application book. The Father did not have a copy at the hearing, and claimed not to have received it, although he responded to an email from the Registrar advising inter alia that it had been prepared and sent to him.
Illustrative of the Father's position is paragraph 12 of his affidavit:
"When I have asked Nowra court for copies of [various documents] I have been told "It is not their job to provide copies". I asked the court to make directions that Nowra court provide copies of requested files when asked. Surely it is cheaper to do this than have repeated mentions and wasting more expensive court time."
In short, the Father has, like many unrepresented litigants, been assisted to a considerable extent by the various courts in which he has commenced proceedings, above and beyond the services offered to other litigants. There is no entitlement to electronic and physical copies of orders such as he seeks. Further, and to anticipate what follows, nothing which has occurred in this respect could give rise to an apprehension of bias.
The Mother's cross-summons
The Father wishes to challenge what has occurred in relation to the Mother's cross-summons. He says that it was filed out of time, that there should have been an application by motion for leave to be granted to extend time, on which occasion he would have insisted on cross-examining her.
However, it was the Father who failed to join the Mother to his appeal, although she was a party to the lengthy proceedings in the Children's Court. The Mother applied by motion to be joined to his appeal. A judge of the District Court formed the view that it would be appropriate for the Mother to file a cross-summons, and directed that that occur within 7 days. That did not occur within that timeframe, but has now occurred (and more than a year ago). At all times it has been made clear that the question whether leave will be granted has not been determined. Moreover, and contrary to the Father's expectation, cross-examination on an interlocutory motion is uncommon and certainly not available as of right: see Markisic v Commonwealth of Australia [2010] NSWCA 273 at [31].
There is no judicially reviewable error in anything that has occurred in relation to the Mother's cross-summons.
Access to written submissions at first instance
There were written submissions at the hearing in the Children's Court. The Father's affidavit does not assert that he was not given copies of those submissions at the hearing, although in addressing the Court, he said that he never received a copy of them. It is not necessary to address what consequences might flow from that, if it be the fact. The essential complaint is that the Father has asked the District Court for copies and has been refused.
It is sufficient to say that it is not established that the submissions are in the possession of the District Court, nor that they were filed in the Children's Court file which has been transferred to the District Court.
But in any event, the Director-General has stated that copies of the submissions will be included in the appeal books before the District Court. The Director-General may take the view that it will ultimately be more efficient to provide an additional copy of the submissions to the Father sooner rather than later. However, there is no judicially reviewable error in the District Court judge declining to make an order. The position is the same in relation to the transcript of the Children's Court hearing.
The interlocutory relief refused by Olsson DCJ
The Father sought to vary the access to his son pending the determination of the appeal. As noted above, this was refused by Olsson DCJ on 3 December 2013 on two bases. The first basis, that her Honour had no power to do so, was expressly conceded by the Director-General and the Independent Legal Representative to be erroneous. That concession was properly made. Subsections 91(4) and (7) proceed on the basis that the District Court may make such an order.
However, Olsson DCJ made it clear that in any event, on her review of the evidence before her, it was not appropriate to grant a stay or variation of the Children's Court's orders. Her Honour had regard to the previous, very limited, history of access which has been summarised above. The Father did not submit that her Honour was materially mistaken in point of fact. Nor did he point to any error of law.
At the forefront of his submissions was the need for him to have increased access to his son in order for updated expert evidence to be placed before the District Court when the appeal was heard. His written submission included the following:
"The Order in place by Justice Olsson would prevent any chance of a positive parenting assessment to take place. The Judicial system should always be fair and impartial always. All steps should be taken to achieve an unbiased report. Not biased by the constraint of the orders currently appealed."
Accepting as I do the sincerity of the Father's submission, it is not sound. Understandably, the Father wishes for his evidentiary position to be as strong as possible when the appeal is heard. It does not follow that he is entitled to put in place, on an interlocutory basis, a more advantageous regime than that ordered by the Magistrate. Where, as here, there had been a lengthy hearing on a final basis, followed by a reserved judgment, with findings made by the Magistrate, including findings adverse to the father's credit, the course taken by her Honour discloses no judicially reviewable error. It is a course which is consistent with one of the purposes of the Care Act, which is that when a child is taken from the care of his or her parents, there should be stability: s 9(2)(f).
Disclosure of the Children's Court orders
The Father contends that the orders from which he has appealed were wrongly disclosed by an officer within the Department. There is evidence that, at the time his motion was heard, there had been a wrongful disclosure, and the Department was conducting a review of what occurred. The motion sought an order for the person concerned to:
"be [brought] to the District Court to answer how she obtained sensitive Children's Court documents and Legal action be taken to recover such documents and Legal action taken to stop [the person] from publishing such documents."
The Father did not make oral submissions in support of that paragraph of his motion in the District Court (it was mentioned once, as part of a series of complaints about the conduct of the Department, at page 22 of the transcript of the hearing on 3 December 2013). In this Court, the Father submitted that he sought a penalty or compensation in respect of the disclosure. The materials do not disclose that that submission was advanced in the District Court. The Father said that that reflected the fact that he was an unrepresented litigant.
It is far from clear, to say the least, that the District Court had jurisdiction to make any of the orders whether they be (a) of the type sought in the Father's motion, or (b) as sought orally in this Court. However, it is perfectly clear that there is no judicially reviewable error in the District Court not ruling on this paragraph of the motion, which was not pressed in the hearing before her Honour and indeed was only pressed in a different form in the proceedings for judicial review.
Bias
The Father seeks orders that the judges who have to date conducted directions hearings be disqualified from playing any part in the future conduct of the appeal by reason of their being biased. He points to previously successful applications by him, including in relation to Magistrate Blewitt, to which reference has been made above.
It is conventional to deal with challenges to bias at the outset. However, as may have been discerned from the nature of some of the Father's submissions recorded above, in large measure the basis of the application was the rejection of the submissions made by the Father.
In part the Father's application is based on the failure to date to determine that the appeal be heard at Nowra. In part it is based on the failure of those judges, on some occasions, to send to him by ordinary mail copies of the procedural directions that were made at those hearings (the Court seems regularly to have sent, or caused to be sent, copies of its orders by email to the parties). In part it is based upon the decision to require the Father's evidence to be prepared by 31 January 2014, and to list the appeal for further directions on a date on which the Father was elsewhere in Court. The way in which those matters were conflated before the judge may be seen from this exchange (which followed Truss DCJ's proposed direction as to timetabling):
"HER HONOUR: What's the other parties' view? I mean my view is this matter has to be moved forward.
HARRIS: Your Honour, yes, we're in essence no further forward than we were in I think it was August when this matter started.
HER HONOUR: That's right. No, Mr Colquhoun, that's the order the Court makes and you have to comply with it.
APPLICANT FATHER: You'll be sending that order out, won't you, your Honour?
HER HONOUR: I just said to you sir Mr Harris' instructor will be providing you with details of the orders made today.
APPLICANT FATHER: Your Honour I should have a copy of your order officially.
HER HONOUR: Mr Colquhoun, please. Then the other orders are ---
APPLICANT FATHER: ... (not transcribable)
HER HONOUR: So Mr Harris what - Mr Colquhoun, please I'm speaking..."
The Father also relied on the fact that he had to participate by telephone. To take the example the Father focussed on, and at length, in oral submissions, a complaint that at a directions hearing on 11 December, he was contacted by the Court when he was driving a car, and found it hard to concentrate upon what was being said.
However, to put this aspect in context, it is necessary to note the following. First, at the lengthy hearing on 3 December 2013, at which he also participated by telephone, the matter was adjourned to 11 December 2013 at 9am, after inquiring whether that was suitable to the parties including the Father. The transcript records no protest by him, nor anything to indicate he did not understand that there would be a directions hearing on that occasion. Secondly, the Court contacted the Father by telephone (at 9.12am on 11 December 2013), seemingly after the Father had not attempted to do so. Thirdly, although it was suggested on 11 December 2013 that he stop driving whilst the directions hearing was being conducted, he appears not to have done so. Fourthly, the only substantive order which was made on 11 December was that all parties finalise service of their evidence by 31 January, and the matter was adjourned until 19 February 2014.
The Father objected to the matter being listed for directions on 19 February because he was involved in proceedings in the Family Court on that date. Truss DCJ said:
"I hear what you say but, sir, you've brought the appeal and there really hasn't been much progress and the matter has to be moved forward. You brought the appeal, sir, and the Court is very concerned to hear it as soon as possible so you'll just have to give it priority. They're the orders sir. I'm not debating them with you."
On 19 February 2014, the Father did not appear, the judge was advised of the application to this Court, and the matter was stood over for four weeks. It seems that the appeal has not subsequently progressed pending the delayed determination of this application.
Some might consider that what Truss DCJ said was a little terse. It should be noted that the Father when called had first said that he "didn't know anything about any court date today", and repeatedly that he had not been notified of the hearing, that "you've just sprung this hearing on me". Accepting that the Father believed what he said, he was simply mistaken in this respect. As much was pointed out by the judge:
"HER HONOUR: Right. So can I just point this out to you sir I think you appeared by telephone when the matter was before Judge Olsson last week and that was when her Honour listed it for today.
APPLICANT FATHER: Well I was unaware. My understanding of the hearing was that she stuck it back in the duty list and there was not a date given for a duty list."
Looking at the whole of what occurred in the directions hearings, I do not consider that even the low threshold of apprehended bias identified in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [6]-[7] and Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427 at [31]-[32] was discharged, or came close to being discharged. There is nothing whatsoever to give rise to the possibility that a hypothetical reasonable observer might think that the matter would be determined other than impartially and in a way free from prejudice. In what follows I mean no disrespect to the Father. He is a determined litigant, who sincerely believes in the rightness of his cause and the wrongness of what has occurred to date. However, much of what he contends discloses bias merely reflects the fact that he is dissatisfied with the outcome. Much of what may be observed in the course of the hearings to date reflects judges self-evidently attempting to accommodate the demands the Father makes, which go beyond the rights accorded to him by law.
Orders
For those reasons, I propose that the summons of 10 February 2014 be dismissed.
There is no reason for the Father not to pay the respondents' costs. It is plain from the foregoing, which does not by any means reproduce the entirety of the procedural record, that the Father has in some respects taken an approach of contesting every point, small or large, where he feels himself slighted. The costs order to which the other parties are entitled should not be rendered nugatory by the prospect of disproportionate disputation by him. Accordingly, I indicate that this is a case where, should any respondent so wish, a lump sum costs order would be appropriate: see the authorities mentioned in Zepinic v Chateau Constructions (Aust) Ltd (No 2) [2014] NSWCA 99 at [29]. Any party who wishes to make such an application should do so in accordance with UCPR r 36.16, and the application will be dealt with on the papers.
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Decision last updated: 22 December 2014
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