D-P v Minister for Child Protection (No 2)

[2020] SASC 34

SUPREME COURT OF SOUTH AUSTRALIA

(Applications Under Various Acts or Rules: Application)

D-P v MINISTER FOR CHILD PROTECTION (No 2)

[2020] SASC 34

Judgment of The Honourable Justice Parker

5 March 2020

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - PARTIES - JOINDER OF PARTIES

This is an oral application by Mr H in the course of related proceedings to be joined as a party to a finalised appeal.

On 27 September 2018, Parker J dismissed an interlocutory appeal by D-P against a decision of the Senior Judge of the Youth Court to dismiss an application to revoke consent orders made under s 38 of the Children’s Protection Act 1993 (SA). Mr H is the husband of D-P. The orders relate to the children of Mr H, L and E. Mr H was not a party to the proceedings in the Youth Court. He was not a party to D-P’s appeal to this Court. He did not apply to be added as a party to the appeal when it was on foot.

Mr H informed the Court that his only reason for making the oral application to be joined as a party to the finalised appeal was that it would enable him to seek special leave to appeal to the High Court against that decision.

Held, per Parker J, dismissing the oral application:

1. Mr H has applied in his own right for the orders relating to his children, L and E, to be set aside. That application was unsuccessful. In JH v Minister for Child Protection [2020] SASC 33, I refused permission to extend the time for the lodgement of an appeal against that decision and also to extend the time to set the appeal down for hearing.

2.  I do not consider the desire of Mr H to seek special leave to appeal to the High Court to be a relevant consideration when deciding whether he should be joined as a party to his wife’s unsuccessful appeal to this Court.

Children’s Protection Act 1993 (SA); Supreme Court Civil Rules 2006 (SA) rr 283, 242, referred to.
Gnych v Polish Club Limited [2016] NSWSC 987, applied.
Bailey v Marinoff (1971) 125 CLR 529; D-P v Minister for Child Protection (2018) 132 SASR 102; H, JR v Department for Child Protection [2017] SASC 121; JH v Minister for Child Protection [2020] SASC, discussed.

D-P v MINISTER FOR CHILD PROTECTION (No 2)
[2020] SASC 34

1. PARKER J:         On 27 September 2018, in D-P v Minister for Child Protection[1]   I dismissed an interlocutory appeal by D-P (also referred to in court documents as JRH and Mrs H)[2] against a decision of the Senior Judge of the Youth Court to dismiss an application to revoke consent orders made under s 38 of the Children’s Protection Act 1993 (SA).

   [1] (2018) 132 SASR 102.

   [2]    Earlier proceedings in the Youth Court had identified the woman who was the appellant in D-P v Minister for Child Protection as D-P. The appeal to this Court in 2018 was also lodged in the name of D-P. However, during the course of the appeal hearing in 2018, D-P informed me that she preferred to be known under her married name of JRH or Mrs H. Because the present judgment is supplementary to that published as D-P v Minister for Child Protection, I have used the title of D-P v Minister for Child Protection (No 2).

2. On 26 October 2017, the Minister for Child Protection applied for long‑term guardianship orders in respect of Mrs H’s children, L and E.  The trial of that application commenced in the Youth Court on 24 January 2017.  Mr H withdrew from the hearing before it was completed.  However, following negotiations, Mrs H consented to the making of orders in respect of her children.  Her son, L, was made subject to a long-term guardianship order, while her daughter, E, was made subject to a 12-month supervision order.  The Youth Court also ordered that Mr H refrain from having any contact with either child.

3. An appeal by Mr H against the refraining order and also against the consent orders was dismissed by Nicholson J in H, JR v Department for Child Protection.[3] As I have previously noted, in D-P v Minister for Child Protection I dismissed an appeal against the application by Mrs H to have the consent order set aside. 

   [3] [2017] SASC 121.

4. I permitted Mr H to speak on behalf of his wife at the appeal hearing in D-P v Minister for Child Protection.  She had sought permission for that to occur because she suffers from dyslexia and has difficulty with documents.  Counsel for the Minister did not object and also observed that Mr H was technically a respondent to the appeal, although he had not been joined as such.  As the Youth Court orders that Mrs H was seeking to have varied or set aside concerned the children of Mr H, and his contact with them, I granted permission for him to make submissions on her behalf.

5. In the course of the related proceedings in JH v Minister for Child Protection,[4] Mr H made an oral application that he be joined as a party to the finalised proceedings in D-P v Minister for Child Protection.  He informed the Court that his only reason for making that application was that it would enable him to appeal to the High Court against the dismissal of his wife’s appeal in D-P v Minister for Child Protection, or more accurately, seek special leave to appeal.  That application was opposed by counsel for the Minister.

   [4]    JH v Minister for Child Protection [2020] SASC 33.

6. Counsel acknowledged that the Court has power to join a party after judgment has been delivered. He referred to the decision of Rein J of the Supreme Court of New South Wales in Gnych v Polish Club Limited.[5]However, counsel submitted that Mr H had not identified any proper reason for the Court to exercise that power.  The judgment in D-P v Minister for Child Protection did not affect the legal rights of Mr H.  The subject of that judgment was the appeal by his wife, D-P, concerning the summary dismissal of her application to have the consent orders revoked.  Mr H subsequently made an application in his own right seeking revocation of the consent orders. That application proceeded to trial and is now the subject of my judgment in JH v Minister for Child Protection.[6]  Further observations I made in D-P v Minister for Child Protection were obiter as I found the appeal on those questions to be incompetent.

   [5] [2016] NSWSC 987 at [34]-[35].

   [6]    JH v Minister for Child Protection [2020] SASC 33.

7. Rule 283(1) of the Supreme Court Civil Rules 2006 (SA) provides that a party to the proceedings in which the judgment under appeal was given is a party to the appeal unless they have no interest in the subject matter of the appeal.

8. Mr H was not a party to the proceedings in the Youth Court that were the subject of my judgment in in D-P v Minister for Child Protection.  Thus, r 283(1) did not operate to make him a party to the appeal in this Court.  However, he could have applied under r 283(2) for the Court to add him as a party to the appeal.  He did not adopt that course when the appeal was on foot but now seeks to do so.

9. Rule 242(2)(a) empowers the Court to vary a judgment if satisfied that the justice of a case so requires.  This power would permit the Court to join Mr H as a party to the appeal.  However, if that were to occur, he should be joined as an appellant rather than a respondent.  That is because he now seeks to join in the application made by his wife seeking the revocation of the orders that placed their children, E and L, in the guardianship of the Minister.

10. I have been advised that the orders made by the Court dismissing the appeal by Mrs H (or D-P) have not been sealed.  Thus, the Court could alter its judgment and orders.[7]  However, at least in the circumstances of this case, the availability of that power does not add to the powers already held by the Court under r 242.

    [7]    Bailey v Marinoff (1971) 125 CLR 529.

11. I do not consider it appropriate to add Mr H as a party to the appeal dismissed in 2018 nor am I satisfied that the justice of the case requires that to be done.  My primary reason is that Mr H applied in his own right for the orders relating to his children, L and E, to be set aside.  That application was unsuccessful. In JH v Minister for Child Protection, I refused permission to extend the time for the lodgement of an appeal against that decision and also to extend the time to set the appeal down for hearing.  I also do not consider the desire of Mr H to seek special leave to appeal to the High Court to be a relevant consideration when deciding whether he should be joined as a party to his wife’s unsuccessful appeal to this Court.  His wife is entitled to apply to the High Court for special leave and for permission to extend the time for lodgement of such an application.[8]

    [8]    I note that Mrs H did not seek permission to appeal to the Full Court against the order dismissing her appeal.

12. For the preceding reasons, I dismiss the oral application by JH to be joined as a party to the appeal in D-P v Minister for Child Protection.