DC v Secretary, Department of Family and Community Services

[2017] NSWCA 225

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

DC v Secretary, Department of Family and Community Services & Ors [2017] NSWCA 225

Hearing dates:

4 July 2017

Decision date:

08 September 2017

Before:

Beazley P at [1]; White JA at [11]; Sackville AJA at [158]

Decision:

(1) Order that the time for the commencement of these proceedings be extended up to the date of the filing of the applicant’s summons;

 

(2) Declare that no order of the District Court or the Children’s Court, whether as a care order purportedly made under s 86 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) or by way of approval of a care plan under s 78 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) requires that the contact arrangements between the applicant and C occur during the school holidays;

 

(3) Declare that the applicant is entitled to be given notice of any proposal by the first respondent or the third respondent to vary the contact arrangements between the applicant and C, as provided for in the care plan filed with the Children’s Court on 27 August 2012, and to be given a reasonable opportunity to be heard in relation to any such proposal;

 (4) Order that the applicant’s summons be otherwise dismissed with no order as to costs.

Catchwords:

ADMINISTRATIVE LAW — Hearings — Procedural fairness — whether applicant withdrew from hearing or withdrew from appeal — whether applicant denied procedural fairness

 

ADMINISTRATIVE LAW — Jurisdiction — Inherent jurisdiction — discretion to refuse prerogative relief — length of delay — whether in the best interests of the child

 

CIVIL PROCEDURE — Court of Appeal — Application — summons for judicial review — extension of time to commence proceedings — raises questions of general importance — extension of time granted

 

CIVIL PROCEDURE — Representation — Unrepresented litigants — Assistance of court — scope of court’s obligation to assist unrepresented litigants

 

CIVIL PROCEDURE — Registrars — Powers of Registrar — power to waive, postpone and remit fees

  FAMILY LAW AND CHILD WELFARE — Child
Welfare under State Legislation — children in need of protection — amendment to care plan under Children and Young Persons (Care and Protection) Act 1998 (NSW) — whether amendment to care plan in absence of applicant gave rise to procedural unfairness

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 78, 78A, 79, 83, 86, 87, 88, 90, 91, 94
Civil Procedure Act 2005 (NSW), ss 9, 13, Sch 3
Civil Procedure Amendment (Fees) Regulation 2015 (NSW)
Civil Procedure Amendment (Hearing Fees) Regulation 2015 (NSW)
Civil Procedure Regulation 2012 (NSW), cll 9, 10, 11
District Court Act 1973 (NSW), ss 4, 9, 18G
Evidence Act 1995 (NSW), s 144
Government Sector Employment Act 2013 (NSW)
Interpretation Act 1987 (NSW), s 30
Supreme Court Act 1970 (NSW), ss 23, 69
Uniform Civil Procedure Rules 2005 (NSW), rr 6.4, 36.16, 36.17, 49.15, 49.19, 50.4, 50.12, 59.10

Cases Cited:

ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1; [2014] HCA 18
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10
Applicant NAFF of 2002 v Minister for Immigration and Multicultural Affairs (2004) 22 CLR 1; [2004] HCA 62
Attorney-General v Times Newspapers Ltd [1974] AC 273
Bobolas v Waverley Council [2016] NSWCA 139
CAC v Secretary, Department of Family and Community Services [2014] NSWSC 1855
CAC v Secretary, Department of Family and Community Services (No 2) [2015] NSWSC 344
CCR v PS & Anor (No 2) (1986) 6 NSWLR 622
Colquhoun v District Court of New South Wales [2014] NSWCA 460
Department of Community Services v SM (2008) 6 DCLR (NSW) 384; [2008] NSWDC 68
Druett v Director General of Community Services [2001] NSWCA 126
Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479
Hamod v New South Wales [2011] NSWCA 375
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461; [2016] FCAFC 48
MacPherson v The Queen (1981) 147 CLR 512; [1981] HCA 46
Maxwell v Murphy (1957) 96 CLR 261; [1957] HCA 7
Muldoon v Church of England Children’s Homes Burwood (2011) 80 NSWLR 282; [2011] NSWCA 46
Oswal v ANZ Banking Group Ltd [2016] VSC 408
R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51
R v Ross-Jones; Ex parte Green (1984) 156 CLR 185; [1984] HCA 82
Rajski v Scitec Corporation Pty Ltd [1986] NSWCA 1
Re Kerry (No 2) – Costs [2012] NSWCA 194
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57
Rodway v The Queen (1990) 169 CLR 515; [1990] HCA 19
SZRUR v Minister for Immigration and Border
Protection (2013) 216 FCR 146; [2013] FCAFC 146
Thaina Town (on Goulburn) Pty Ltd v City of Sydney Council (2007) 71 NSWLR 230; [2007] NSWCA 300
X v Director General of the Department of Community Services [2001] NSWCA 413
Yrttiaho v Public Curator (Qld) (1971) 125 CLR 228; [1971] HCA 29

Texts Cited:

JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow and Lehane’s Equity Doctrines and Remedies (5th ed 2015)

Category:

Principal judgment

Parties:

DC (Applicant)
Secretary, Department of Family and Community Services (1st Respondent)
DF (2nd Respondent)
Anne Mowbray, Independent Legal Representative (3rd Respondent)
District Court of NSW (4th Respondent)

Representation:

Counsel:
In person (Applicant)
Ms Barnett (1st Respondent)
In person (2nd Respondent)
In person (3rd Respondent)
No appearance (4th Respondent)

  Solicitors:
n/a (Applicant)
Crown Solicitors (1st Respondent)
n/a (2nd Respondent)
Acorn Lawyers (3rd Respondent)
n/a (4th Respondent)

File Number(s):

2017/78239

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Child Care Appeal

Citation:

Nil

Date of Decision:

3 June 2016

Before:

Williams ADCJ

File Number(s):

2013/225071

Headnote

[This headnote is not to be read as part of the judgment]

By orders made by the Children’s Court on 5 July 2013, the applicant’s nine year old son, C, was placed into the care of the Minister for Family and Community Services until he reaches 18 years of age. A care plan was also registered under the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the Care Act”) which provided that the applicant should have supervised contact with C for two hours two times per year according to C’s wishes.

On 24 July 2013, the applicant filed an appeal against the orders of 5 July 2013 in the District Court of NSW.

On 1 August 2015, Schedule 1 of the Civil Procedure Regulation 2012 (NSW), which prescribes the court fees, was amended. One of the consequences of the amendment was that daily hearing fees became payable in District Court proceedings that extended beyond the first day. The applicant was not advised of the changes. The applicant later became aware of his liability to pay daily hearing fees and he applied to the primary judge to waive the fees. The primary judge informed the applicant that only a Registrar of the District Court had the power to determine an application for waiver of fees. The applicant indicated he wished to withdraw from the hearing. He was advised by the primary judge that, if he did so, C’s care plan would remain the same. The applicant subsequently withdrew from the proceedings and his appeal was dismissed.

At the conclusion of the hearing of the mother’s concurrent appeal, the primary judge dismissed her appeal; set aside the orders of 5 July 2013; and made fresh care orders under the Care Act. The primary judge also approved an addendum to C’s care plan, which provided that “there be contact between C and his father for two hours two times per year during school holidays subject to C’s wishes and supervised by Community Services or an authorised person” [emphasis added]. The effect of the addendum was that the applicant was no longer able to visit C on C’s birthday. The applicant filed a summons for judicial review in respect of the orders of the primary judge.

The principal issues for determination on the appeal were:

(1) whether the applicant was denied procedural fairness in relation to the daily hearing fees and his fee waiver application;

(2) whether the applicant was denied procedural fairness in relation to the fresh care orders and amended care plan.

In relation to (1)

Beazley P:

(i)   Notwithstanding the desirability of parties being informed of the procedural requirements and processes involved in the litigation being conducted there was no obligation on the court, including the registry, to undertake the task of advising the applicant prior to the hearing that daily hearing fees had been introduced: [5]-[7]

Beazley P and White JA (Sackville AJA contra)

(ii)   The applicant was not denied a fair trial by reason of the primary judge’s not advising the applicant that he could seek a direction from the primary judge requiring the registrar to deal with his application for waiver of the daily hearing fees or to seek a review of an adverse decision: [8]-[10], [115], [121], [174]-[179]

Sackville AJA:

(iii)   The primary judge erred in failing to advise the applicant of his rights in relation to the waiver of court fees, but the alleged failure of the Court’s Registry to inform the applicant prior to the hearing of his liability to pay daily hearing fees did not constitute a denial of procedural fairness: [182]

White JA:

(iv) The obligation to provide procedural fairness is an obligation of the court and not only the judge hearing a proceeding, and the District Court failed to advise the applicant that daily hearing fees would be payable unless waived, but this did not mean that he was denied information necessary for him to be able to conduct a fair trial: [115] and [121]

White JA (Beazley P and Sackville AJA agreeing):

(v)   Failure to adhere to the requirements of natural justice will ordinarily require the decision to be set aside: [118]

R v Ross-Jones; Ex parte Green (1984) 156 CLR 185; [1984] HCA 82 applied

Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 applied.

White JA (Beazley P and Sackville AJA agreeing):

(vi)   Relief by way of judicial review should be denied by reason of the applicant’s delay having regard to C’s interests: [1], [123]-[126]

Sackville AJA:

(vii)    If an unrepresented claimant announces an intention to withdraw from proceedings, particularly if the announcement is made well into a lengthy but incomplete hearing, ordinarily a trial judge should inform the litigant of the consequences of withdrawing. The consequences of an order dismissing proceedings are usually so serious that a court should explain that it proposes to make such an order if the party purporting to withdraw does so: [172]

(viii)   A person alleging a breach of procedural fairness may have to adduce evidence of the steps he or she would have taken if the alleged breach had not occurred: [173]

Applicant NAFF of 2002 v Minister for Immigration and Multicultural Affairs (2004) 221 CLR 1; [2004] HCA 62 applied.

In relation to (2)

White JA (Beazley P and Sackville AJA agreeing):

(ix)   The care orders of 3 June 2016 were made after a hearing de novo and reflected the Court’s assessment of what orders were required for C’s safety, welfare and wellbeing as at the time the District Court determined the appeal: [136]

(x)   The change in contact arrangements that precluded contact with C on C’s birthday was material and had a significant impact on the applicant. The applicant was denied procedural fairness when the change was made without notice to him: [14], [147]

Judgment

1. BEAZLEY P: I have had the advantage of reading in draft the reasons of White JA. I agree with his Honour that the applicant was denied procedural fairness in relation to the change to contact arrangements, as discussed at [137]ff. I also agree with the relief proposed by his Honour. The applicant was not otherwise denied procedural fairness. In that regard, and subject to the observations I next make in relation to the waiver of the daily hearing fee, I agree with the reasons of White JA, including, should it have been in issue, that relief should be refused on a discretionary basis having regard to the applicant’s delay.

2. The imposition of a daily hearing fee has now become a feature of litigation. The onerous impact of the imposition of daily hearing fees on an individual litigant may be modified either by waiver or postponement, as White JA has explained. The decision whether to do so is made by a registrar. As White JA has also explained, the primary judge had the power to direct the registrar to consider an application for waiver, if the registrar had failed or refused to do so, and also had the power to review a decision of the registrar had the waiver been refused.

3. In this case, it was of real concern to the applicant that a daily hearing fee applied in relation to his appeal, although at the time that he filed his appeal in the District Court no daily hearing fee was payable. Whilst the relevant District Court approved form made reference to court fees being “payable during these proceedings. These fees may include a hearing allocation fee”, it is unlikely that that statement would have alerted a litigant that daily hearing fees might be introduced at some time after the initiating process was filed.

4. In this case, daily hearing fees in respect of the proceedings brought by the applicant were introduced approximately a month before the applicant’s appeal was listed for hearing: see the Civil Procedure Amendment (Fees) Regulation 2015 (NSW); Civil Procedure Amendment (Hearing Fees) Regulation 2015 (NSW) and White JA at [34]-[35] below. No reference to the payment of a daily hearing fee was made then or at any time until, it appears, sometime after the commencement of the hearing.

5. It was argued that the applicant was denied procedural fairness in not having been advised some time earlier that the fee was payable. There was no evidence, nor any information available or submission made to the Court, as to how this was to have been achieved. In the normal course, however, I would expect that the provision of information as to any matters that relate to the imposition or payment of a hearing fee would be an administrative or clerical function of the non-judicial registry staff.

6. Whilst the registry is part of the court: see District Court Act 1973 (NSW) s 4, contrary to the view expressed by his Honour, I would not characterise the circumstances here as the court having failed to act in not advising the applicant, a reasonable time prior to the hearing, that daily hearing fees had been introduced: see White JA at [114]-[115]. Notwithstanding the desirability of parties being informed of the procedural requirements and processes involved in the litigation being conducted, for my part, I consider that it is difficult to characterise something as a “failure” of the court where there was no obligation on the court, including the registry, to undertake that task.

7. I should add that I am also of the view that it would have been beyond the resources of most registries to have notified litigants in the thousands of pending matters in the various District Courts around the state that daily hearing fees had been introduced. Indeed, I doubt that there would have been the systems available in the registries to do so. Accordingly, I would not treat the fact that the applicant was not informed of the fee prior to the hearing having commenced as a failure of the court.

8. I also have a concern in relation to the observations made in respect of the primary judge’s failure to advise the applicant that he could seek a direction requiring the registrar to deal with the application or to seek a review: see White JA at [115](b). It was not the type of procedural matter which usually comes before a judge in the course of a hearing and few judges would be aware of the processes involved in the making of an application for, or determination of, a fee waiver.

9. More particularly, the position was not clear as to whether the registrar had refused to deal with the application. It is somewhat moot in that circumstance to say that the court had failed the applicant. Further, in the normal course, a judge would expect that an application for review would be made and listed for hearing without any judicial intervention or invitation.

10. In the result, however, I agree with White JA, at [121], that the applicant was not denied a fair trial in the circumstances and, accordingly, the applicant did not establish jurisdictional error on this ground.

11. WHITE JA: This application concerns a boy aged nine who will be referred to in these reasons as C. By order of the Children’s Court made on 5 July 2013 C was placed in the care of the Minister for Family and Community Services (“the Minister”) until he attains the age of 18. All aspects of parental responsibility for C were allocated solely to the Minister until he attains that age. In making those orders the Children’s Court recorded its findings that there was no realistic possibility of C being restored to the care of his parents and that permanency planning for C had been appropriately and adequately addressed in accordance with the requirements of s 78A of the Children and Young Persons (Care and Protection) Act 1998 (“the Care Act”). This Court was told that the Children’s Court also approved a care plan pursuant to s 78 of the Care Act. The care plan included a provision that C’s father should have supervised contact with C for two hours two times per year according to C’s wishes.

12. The applicant is C’s father. Both the applicant and C’s mother appealed to the District Court from the orders of the Children’s Court. The hearing of both appeals commenced on 4 April 2016. On 14 April 2016 the applicant indicated that he was withdrawing. There is a question as to whether the applicant withdrew from the hearing or whether he withdrew his appeal. The primary judge (Williams ADCJ) took the applicant to be withdrawing his appeal and his appeal was dismissed. The mother’s appeal proceeded. It was dismissed on 3 June 2016.

13. The District Court set aside the orders made on 5 July 2013 by the Children’s Court, notwithstanding that the mother’s appeal and the applicant’s appeal had both been dismissed. The District Court made the same final care order as had been made by the Children’s Court, namely, that pursuant to s 79(1)(b) of the Care Act parental responsibility for the child C be allocated to the Minister until C attains the age of 18 years. The orders of the District Court include two notes that:

“(a)    The appeal filed by [the applicant] was withdrawn and dismissed on 14 April 2016;

(b)   Having considered paragraphs 319-329 of the judgment of A/Judge Williams delivered on 3 June 2016 the Secretary, Department of Family and Community Services has prepared an addendum to [C’s] Care Plan which is filed together with these orders.”

14. The addendum to the care plan so filed provided under the heading “Details about Contact” that “there be contact between C and his father for two hours two times per year during school holidays subject to C’s wishes and supervised by Community Services or an authorised person” (emphasis added).

15. The applicant filed a summons on 14 March 2017 described as a “Summons (Supervisory Jurisdiction)” in accordance with r 6.4(1)(b1) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”).

16. No appeal lies to the Court of Appeal from orders of the District Court on appeal from the Children’s Court pursuant to s 91 of the Care Act (Druett v Director General of Community Services [2001] NSWCA 126; X v Director General of the Department of Community Services [2001] NSWCA 413 at [24]; Muldoon v Church of England Children’s Homes Burwood (2011) 80 NSWLR 282; [2011] NSWCA 46 at [8]; Colquhoun v District Court of New South Wales [2014] NSWCA 460 at [7]). The application is made pursuant to s 69 of the Supreme Court Act 1970 (NSW) which provides, relevantly, that the Court may grant relief by way of judicial review if a writ of certiorari or mandamus would formerly have lain to quash a decision or to compel a decision-maker to proceed in accordance with law. In this case the applicant seeks an order that all orders made by the primary judge be quashed. That claim extends to the orders dismissing the applicant’s own appeal following his withdrawal from the proceeding in the District Court and from the subsequent orders made by the primary judge.

14. The applicant’s summons did not identify the grounds upon which the applicant seeks to set aside the orders of the District Court except by reference to the applicant’s affidavit. That affidavit is a mixture of statements of fact and submission.

15. These reasons will first identify the grounds of review on which the applicant relies, then address whether an extension of time for the commencement of the proceedings should be granted. I consider that an extension of time should be granted. I then address the procedural history of the hearing in the District Court, whether the applicant withdrew his appeal and whether he was denied procedural fairness on any of the grounds of review relied upon. I have concluded that there was no procedural unfairness in the hearing of the appeal, but the applicant was not given the information he needed to make an informed decision whether to apply for a waiver of hearing fees, or to seek a review of a registrar’s decision in that connection. I have concluded that this did not mean that the trial was unfair. I have concluded that there was a denial of procedural fairness in the applicant’s not being given notice of the application of C’s Independent Legal Representative (“C’s ILR”) to vary the contact arrangements between the applicant and C. These reasons will then address whether relief should, in any event, be refused on discretionary grounds. I have concluded that the order of 14 April 2016 dismissing the applicant’s appeal should not be quashed, but his challenge to the change to the contact arrangements between him and C in the care plan should be upheld. Finally, these reasons address the question as to what orders should be made to give effect to these conclusions.

Grounds of Review

19. The applicant contends that the primary judge committed jurisdictional error by saying that he had withdrawn his appeal.

20. The applicant also contends that the primary judge exhibited bias by informing him that he would have to pay what the applicant called a “court allocation fee” of $1,600 per day whether he was successful or not; by not giving him a timetable for the taking of his witnesses’ evidence; by not “committing” to what witnesses the Secretary would call; and by not requiring the mother to file a notice of motion seeking leave to appeal out of time. This last complaint was not pressed. The applicant complains that the primary judge erred in saying that he could not waive the daily hearing fee, and contends that by reason of this he was not given procedural fairness. He also says that by this decision the primary judge exhibited bias.

21. The applicant complains that the primary judge exhibited bias and there was otherwise jurisdictional error by the applicant’s filed material being removed from the file when the applicant withdrew from the hearing. He says that the primary judge took account only of the evidence of the Secretary.

22. These grounds all relate to the circumstances of the father’s withdrawing from the proceedings on 14 April 2016.

23. A separate ground of challenge was that when the District Court made fresh orders granting parental responsibility to the Minister in substitution for the orders of the Children’s Court, there was a denial of procedural fairness because that course materially affected the applicant’s ability to make an application in the Children’s Court under s 91A (sic) of the Care Act. (The applicant’s reference to s 91A, which is an interpretation provision, appears to be a mistaken reference to s 90.) Under s 90 of the Care Act an application for rescission or variation of a care order may be made with the leave of the Children’s Court, but only where it appears to the Children’s Court that there has been a significant change in any relevant circumstances since the care order was made or last varied. The applicant complains that by the dismissal of his and the mother’s appeals, and the making of fresh care orders, his ground for seeking a rescission or variation of the original orders of the Children’s Court by application to the Children’s Court under s 90 was denied.

24. The applicant challenges the change of the care plan for C that amends the contact arrangements so that contact must occur during school holidays. C’s birthday falls in early November which is not part of the school holidays. A result of the change to the care plan was that the Department of Family and Community Services (FACS) has refused to allow a contact visit of C with the applicant on C’s birthday. The applicant was not given any notice of the proposed change to the care plan and had no opportunity to make any submission about the proposed change.

Extension of Time for Commencement of Proceedings

25. In his summons the applicant sought leave to appeal from the orders of the District Court out of time. The applicant has appeared in person without legal assistance. The submissions of the Secretary and of C’s ILR also characterised the applicant’s case as an appeal from the District Court’s orders for which leave was required because the appeal was out of time. This was misconceived. No leave to appeal could be given because for the reasons given at [15] above, no appeal lies from the orders of the District Court.

26. The summons seeking judicial review of the decisions of the District Court was not filed within three months of the date of the decisions as required by UCPR, r 59.10(1). Therefore, an extension of time for the commencement of the proceedings is required pursuant to r 59.10(2) of the UCPR. Rule 59.10(3) of the UCPR provides:

“59.10Time for commencing proceedings

…

(3)     In considering whether to extend time under subrule (2), the court should take account of such factors as are relevant in the circumstances of the particular case, including the following:

(a)     any particular interest of the plaintiff in challenging the decision,

(b)     possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings,

(c)    the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision,

(d)     any relevant public interest.

…”

27. The applicant gave unchallenged evidence that at the beginning of November 2016 he was contacted by FACS and told that he could not have a contact visit with C on C’s birthday because new orders had been made which did not allow for a birthday visit. He deposed that a copy of the orders was subsequently sent to him and he appealed at the nearest opportunity.

28. With regard to the requirements of r 59.10(3), I have regard to the following.

29. The applicant, as C’s father, has an undoubted interest in challenging the decisions of the District Court.

30. The people who might be prejudiced by an extension of time if relief were to be granted are C and C’s foster carers. The grant of prerogative relief (that is, relief by way of judicial review) is discretionary and delay in seeking such relief is a relevant matter, and potentially a highly relevant matter, in deciding whether such relief should be granted or refused. In so far as the applicant seeks to set aside the order of the District Court dismissing his appeal on 14 April 2016, and having regard to the need for stability and certainty in C’s placement with the foster carers with whom he has been placed since 2010, the delay in seeking to set aside that order is an important discretionary consideration. It is also a relevant consideration on the question whether the applicant should have an extension of time under r 59.10 to challenge the orders of the District Court of 14 April 2016 dismissing his appeal.

31. The applicant deposes that he was unaware of the “new orders” made until November 2016. In so far as the order of 14 April 2016, that evidence should not be accepted. In an email referred to in the primary judge’s reasons of 3 June 2016 (at [289]-[290]) the applicant either sought or foreshadowed that he would seek reinstatement of his appeal. The primary judge gave reasons as to why that application should fail. The applicant did not subsequently file a notice of motion or other process seeking to set aside the orders of 14 April 2016 until he filed his summons in this Court on 14 March 2017. His filing of the summons was prompted by his being denied a contact visit with C for C’s birthday.

32. The delay of approximately four months between the applicant’s learning of the change to contact arrangements and his commencing these proceedings was not great and does not create any prejudice.

33. I would make an order under UCPR r 59.10(2) extending the time for the filing of the application to review the orders of the District Court, including the order of 14 April 2016 dismissing his appeal. The application raises questions of general importance, in particular, in relation to the content of a court’s obligation to provide procedural fairness to a self-represented litigant. The effect of delay is appropriately addressed in considering whether there are discretionary reasons for refusing relief by way of judicial review if grounds for granting such review are otherwise established.

Procedural History

34. On 24 July 2013, the applicant filed his summons in the District Court commencing an appeal from the orders of the Children’s Court. Immediately above his signature to the summons was a note in accordance with the prescribed form of summons (Form 84; UCPR r 50.4 and 50.12) containing the following:

“I acknowledge that court fees will be payable during these proceedings. These fees may include a hearing allocation fee.”

35. The court fees payable on the applicant’s summons were prescribed by the Civil Procedure Regulation 2012 (NSW). The terms of that Regulation, and the powers of a registrar to waive, postpone or remit fees, and the powers of a District Court Judge are dealt with below. For present purposes it is sufficient to say that at the time the summons was filed there was no daily hearing fee applicable to civil proceedings in the District Court. A hearing allocation fee of $648 was then prescribed. Daily hearing fees for the second and subsequent days of cases were imposed in relation to civil proceedings in the District Court from 1 August 2015. From 1 August 2015 to 30 June 2016 the hearing allocation fee payable by an individual for a proceeding in the District Court was $684. The hearing fee was payable for each day of hearing, or part of a day as follows:

“A.    On the second, third or fourth day          $400

B.   On the fifth, sixth, seventh, eighth or ninth day    $700

C.   On or after the tenth day             $1000”

36. On 15 September 2015 the appeals were listed for hearing commencing on 4 April 2016. The estimated length of hearing was five weeks.

37. According to a chronology provided by the mother, that was not challenged by any other party, between 1 August 2015 and 4 April 2016 the proceedings were listed before a registrar and nine different judges of the District Court for directions, or for return of subpoenas, or for hearing of notices of motion.

38. The first day of hearing in the District Court was 4 April 2016. The applicant expressed concern about his exposure to a possible costs order. This was not directed to his liability to pay fees under the Civil Procedure Regulation, but to his potential liability to pay costs if his appeal failed. Section 88 of the Care Act (which is in Division 5 of Chapter 5 of the Care Act) provides:

“88Costs

The Children’s Court cannot make an order for costs in care proceedings unless there are exceptional circumstances that justify it in doing so.”

39. An appeal to the District Court from a final order of the Children’s Court is provided by s 91 of the Care Act. It says:

“91Appeals

(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.”

40. It appears to have been the understanding of the primary judge, counsel who appeared for the Secretary, and the applicant that s 88 of the Care Act was also applicable to the appeal to the District Court (see further Department of Community Services v SM (2008) 6 DCLR (NSW) 384; [2008] NSWDC 68; Re Kerry (No 2) – Costs [2012] NSWCA 194 at [7]).

41. The applicant deposed that:

“After approximately 8 days [sic] of hearings I was informed by Justice [sic] Williams I needed to pay a court allocation fee of $1,600 per day for every day court continued whether my application was successful or not.

In between breaks I investigated these costs that had just been bestowed upon me. I was told by the Nowra Court Registrar as I was not working and had little income I could fill out a waiver of court fees, which I promptly did. I then gave that to the Registrar who decided it was up to the Judge to decide.

Justice [sic] Williams then said in court it was not up to him to decide, but the Registrar of Wollongong Court. It was a Wednesday, but the Registrar was away until the following Monday. So I would have to await the decision.

My funds were depleted just paying all the experts and reports getting my appeal on. I was already under financial stress being solely supported by my wife with her funds now also depleted.

I was under stressors of court and being self-represented with what can only be described as a biased judge. He would not give a timetable of events or would not rule up front what witnesses would or would not be called. I had many expensive professional experts to be called. Not being able to give those accurate times they were needed was going to cause huge costs.

He would also not commit to what experts on the other side would be called and when, so I could prepare the night before for cross examination.

The Mother did not exercise her right of Appeal in the required 28 days.

The Mother did choose to Appeal by way of Cross Claim some three months later. The procedure for a late appeal should have been by way of Notice of Motion listing the reasons for being late. This should have been heard before the Appeal and not dealt with after the Appeal started.

…

Did Justice [sic] Williams have the right to add pressure on an already financially stressed self-represented Father by now telling him he was up for $1600 per day for a court allocation fee?”

42. The transcript shows that Williams ADCJ did not tell the applicant that he would have to pay $1,600 per day for a court allocation fee. But as set out below, the applicant was apparently given a schedule, which I infer was prepared by the registrar or a member of the court’s staff. It apparently set out what hearing fees would be payable. The chronology of what happened, so far as it can be discerned from the materials placed before the court, is as follows.

43. On the first day of the hearing the applicant objected to a report that he said had been served the previous Thursday, being a report from a “court clinician” that was evidently adverse to his position. He said that the report was crucial and he had not had time to review it and foreshadowed that he might need to seek an adjournment to obtain legal advice or a second opinion on it. Otherwise he foreshadowed he might have to remove himself from the proceedings and he sought an adjournment to determine whether, if that were to happen, he might be liable for costs. Later on in the day he sought a further short adjournment and after it was granted he said that the other parties had made conflicting statements as to whether they would seek costs, or he would be liable for costs, and said he would pursue the matter. This transcript is corroborative of the plaintiff’s complaint that he was concerned about his exposure to potential financial liabilities.

44. The proceeding was adjourned to Wednesday, 6 April 2016 to give the parties time to read seven folders of evidence proposed to be relied upon by the Secretary and two folders of evidence that the applicant tendered. The purpose of the adjournment was also to give the applicant an opportunity to tell the Secretary which of the witnesses the Secretary proposed to call would be required for cross-examination. At the conclusion of the first day the applicant said he proposed that he call his witnesses on the third and fourth weeks of hearing, being the weeks commencing 18 April 2016 and probably finishing around 5 May 2016. He said that he had been told that experts who had done parenting psychological assessments or psychiatric assessments and the like were required for cross-examination. He needed to be able to give them notice. He also foreshadowed calling principals of two schools which C had attended for them to give oral evidence, and foreshadowed calling other persons to give evidence about his parenting capacity. There was debate as to the likely relevance of such evidence.

45. The hearing resumed on Thursday, 7 April 2016. The applicant commenced by advising the judge that:

“APPELLANT: …Today I was, had to go and see the office, because there’s a $684 hearing fee. Now, I already paid $450, I think it was, for the, the appeal to get here, and my understanding was that’s all I had to pay. Today I’ve been brought to my attention there’s now a $685 hearing fee. Now I, from the office, from what I understand, you can actually waive that fee. Now, it would be grossly unfair if I’ve got to pay that fee and [the mother] is attached to the appeal.

… So what I would put to you, to waive that $685, $684 fee, or alternatively it should be split up between the parties. But I don’t see why I should get stuck with all the cost, which is now a thousand dollars worth of costs, over a thousand dollars worth of costs, when [the mother] has the same right in this appeal as I do. At any time the cost should be split fifty-fifty, or alternatively my application would be that you – an application to waive that fee.

HIS HONOUR: Well, if I can waive the fee, I’ll waive it.”

46. A little later the applicant handed to the judge a calendar on which he had made a list of witnesses whom he proposed to call and said it was imperative that the professional witnesses be booked. The judge said “Yes, that’s not a problem. We can always work around things like that.” The mother objected that 17 people on the list had not made an affidavit or otherwise gone into writing. She objected to evidence being adduced from them unless cause could be shown. Counsel for the Secretary said that of the people named on the list provided by the applicant, the Secretary would only require four for cross-examination. He named the four. The judge said that the persons on the list about whom he was really concerned were experts whose reports had not been served. The judge expressed concern as to why all the persons proposed to be called by the applicant were being called, and in particular why those who had filed affidavits and were not required for cross-examination would be called to give oral evidence. It appears that orders had been made that the evidence of at least non-expert witnesses should be given by affidavit.

46. The applicant said that he proposed to get the witnesses to expand on what they had written. The judge said that that would not be allowed as it would be unfair to the other parties who would not have had the chance to check up or counter any additional material and would be caught by surprise. The applicant said that if the judge took that view he would ask for an adjournment so he could do a 500-page affidavit. He complained at considerable length about what he contended was unfairness in the approach indicated. After lengthy and somewhat acrimonious debate between the judge and the applicant, counsel for the Secretary returned to the question of the timetabling of witnesses. He said that there were only three witnesses the Secretary would be calling who had put on any fresh material in the proceedings, that is, material that had not been provided to the Local Court for the hearing in that court. He foreshadowed asking for a ruling as to whether the applicant should be entitled to cross-examine the other witnesses who had been cross-examined in the Local Court. Counsel proposed that the parties first confer to see if a consensus could be reached about whether there were additional matters upon which witnesses should be cross-examined, even though they had not filed additional material, and if that consensus was not reached, to obtain a ruling. Counsel said:

“As to the father’s second complaint of the need for a timetable, that can be done once I’ve had an opportunity to speak to them [the applicant and the mother] about the witnesses they have required and which witnesses there’s no utility in further requiring.”

48. The matter then proceeded (after further acrimonious debate) until the first witness called in the Secretary’s case was called. At the end of the second day counsel for the Secretary said that he was confident that it would be necessary to ask his Honour for a ruling as to whether or not certain witnesses should be made available for cross-examination where they had produced no further evidence in addition to what was before the Children’s Court and had already been cross-examined in that court.

49. At the beginning of the third day of hearing on Friday, 8 April 2016 the applicant said:

“APPELLANT:    Your Honour as always I’m always in deep thought when I leave here, but the first thing that comes to mind was, obviously it’s a major issue for me, is these costs and obviously I had no idea that these costs would be sprung on me, I had no idea about them. All I knew I had to pay the $450 for the initial appeal which I paid, and had no idea on the rest. Now on saying that, the Court got adjourned on Tuesday and Wednesday due to no fault of mine and I am unaware that I am in breach of any court orders or any court directives at any stage in the proceedings at any time because I’ve always tried to follow the Court directions and both in the lower courts and in this Court and obviously I’m aware that there’s going to be costs on those two days also, and I find it unfair that not only do I get now informed about the costs, but also paying for costs for those couple of days when there, you know obviously –

HIS HONOUR: Well I don’t think you should be paying costs for those because the Court wasn’t sitting, so I think that answers that.

APPELLANT: It’s on the list though, that’s all, the list of costs that’s all your Honour, Day 1, Day 2, Day 3.

HIS HONOUR: Yes but that’s just a list that’s been drawn up without regard to whether the Court was going to be sitting or not. That’s just to inform you I think. I didn’t draw the list up.

APPELLANT: All right, I was just bringing – you can imagine the worry, I mean we’re flat broke getting to this level, we’ve spent all the money and we just don’t have any.”

50. There was no evidence as to what was on the list to which the applicant referred. It can be inferred that it was a list prepared, perhaps by court staff, that set out what were the hearing fees for the anticipated number of days of hearing.

51. Later on the third day there was further debate about the applicant’s proposal to tender reports of departmental employees and then call those employees on subpoena to seek to cross-examine them, when they had been cross-examined in the Local Court and about the applicant’s wish to cross-examine departmental officers in order to show they had misled courts.

52. Towards the end of the third day there were heated exchanges between the applicant and the judge in which his Honour threatened to charge the applicant with contempt. The applicant objected that his Honour was ruling questions as inadmissible before he had completed the question. His Honour said that the applicant answered back, did not accept rulings, and continued to ask questions which had been ruled inadmissible. There was the following exchange:

“HIS HONOUR: We haven’t got time Mr [DC] to listen to every question you want to ask and then for me to say, that’s not admissible. We just don’t have that time.

APPELLANT: Well that’s what I – I’m paying for it, I expect that.

HIS HONOUR: No you’re not paying for it, that’s – don’t tell me you’re paying for it, you’re not paying for it.

APPELLANT: Well who is? Well that’s good if you make that ruling.

HIS HONOUR: I’m not making a ruling. …”

53. At the beginning of the fourth day, Monday, 11 April 2016, the seven volumes of materials tendered by the Secretary were admitted without objection. An affidavit of the applicant and five folders of documents tendered by him were admitted as exhibits.

54. The applicant applied to the judge to disqualify himself. The judge declined to disqualify himself. After reciting various issues that had arisen in relation to subpoenas and objections to evidence his Honour added the following:

“A matter also arose in relation to the costs of these proceedings and it was a matter that I personally had no knowledge of but I was informed during the course of last week’s hearing, that there is a fee that has to be paid and then there is a daily fee that is payable in respect of the hearing of this matter.

I thought that I might have been able to waive the fee but it turns out that I cannot. The only person who can waive a fee is the registrar or the registrar can also postpone the fee in circumstances but they are pretty limited. That was a matter of significant concern to [the applicant], quite naturally, because if this matter runs for its allotted length of time the costs that he would have to pay, the court costs that he would have to pay were in the order of some 25, $26,000.”

55. Towards the end of the sixth day of hearing (Wednesday, 13 April 2016) the applicant advised the Court that he was of a mind to pull out of the case the next day and asked what would happen in relation to costs were he to do so. He said:

“… I can’t see me going anywhere to be successful at the end of this … What I’m worried about at the moment, your Honour, is that it’s cost me 20 grand to get here. … there was costs proposed to me of $25,000 that were thrown at me, that it’s going to cost to stay in here. I can’t see the point in staying here six weeks to get a decision that’s only going to remain the same, and my pocket and my family are then out of pocket another $20,000 which causes financial stress …

…

When I went and checked an appeal out, it was $440 or $450 for the appeal, plus whatever my experts were going to be … and all of a sudden on the other week we were told that it … could be another potentially 25 grand. I can’t see that me sitting here clashing heads with yourself and knocking my head against a brick wall if nothing is going to change.

… I promised my son that many years ago I would get him out of where he is, and I promised my father the same. If it looks like that I can’t fulfil that promise, it’s not going to be fulfilled in this Court, there’s not much point in me staying in this Court, … to only get another costs claim of 25 grand.

HIS HONOUR:    Well, that, the $25,000 is something to do with the Attorney General’s Department.

Appellant:   … I want to sort of get an idea off you, so that I can think about things tonight, that if I came here tomorrow and pull out tomorrow, are the costs up till today going to be split up between the parties or am I going to get solely stuck with the costs? Does the court continue to, to hear this without me? …”

At that point his Honour said that he could not advise the applicant.

56. The primary judge clarified that when the applicant was talking about costs he was talking about the court fees and said that if he pulled out the next day he would only have to bear the court hearing allocation fee and however many days the court had sat. The applicant asked whether he would have to bear those days himself, or whether it would be split up between the parties, and his Honour said that he would have to look at the legislation and hear from the other parties in relation to that.

57. On the following day, Thursday, 14 April 2016, the primary judge advised the parties that:

“The regulations provide that the plaintiff usually pays the hearing allocation fee and the hearing fee, that is, the daily hearing fee, unless the court otherwise orders. That doesn’t mean to say that the court can order that there’d be no payment of the fee, but it can order that the fee be shared between the parties. Do you understand that?

APPELLANT: I do your Honour and you could actually make an order that there is no fee also though by the sound of it.

HIS HONOUR: No I can’t.

[Mother]: He can’t waive it but he can –

HIS HONOUR: I can’t order that there be no fee. I can order that a party to the proceedings share the fee but I can’t order that there be no fee.”

58. The applicant then applied to have the daily hearing fees apportioned between the four parties. The Secretary and C’s ILR opposed the making of any order which would require them to bear any part of the hearing fees. Counsel for the Secretary said that the Secretary opposed such an order for the reason that the Secretary was not responsible for the commencement of the appeal, nor for the length of the appeal. His Honour concluded that the daily hearing fees should be apportioned equally between the applicant and the mother as the hearing concerned appeals by both of them.

59. The applicant was excused so he could see the Registrar. The mother continued her cross-examination of an employee of the Department. Immediately before the morning tea adjournment the applicant advised the court that:

“APPELLANT: I’ve been up seeing the court staff as you’re aware. I’ve filled out a waiver of application which the court staff says it has to be sent to Sydney. Now, is it possible to get your staff here to send it to Sydney or do I need to go home and do, do it at home?

HIS HONOUR: I don’t know.”

60. The primary judge asked if there was any reason why the office (of the court) could not send the document to Sydney. His Honour then offered to have the document faxed through to a registry in Sydney and asked how big the document was. The applicant said it was just the application to waive fees and told the judge that it was ready to go. There was then the following exchange:

“APPELLANT: I can say to the Court that if the Court in Sydney District Court aren’t willing to waive the fees, I withdraw. The question I’d ask on withdrawal is does my withdrawal, withdrawal of mine means the care plan stays as they are in regards to myself?

HIS HONOUR: Yes.

APPELLANT: Yes.

HIS HONOUR: As I understand it.

APPELLANT: So that won’t change.

HIS HONOUR: Well, there’s no basis for changing it at this point in time.”

61. After the short adjournment in which the primary judge evidently made some inquiries, his Honour advised the applicant:

“Well, Sydney won’t or can’t do it. The Registrar here has refused the application as I understand it. …

The only other place that you can take it is to the Senior Registrar at Wollongong and I have been informed that she isn’t at work at the moment and won’t be at work till Monday. You’re seeking as I understand it to have the fee waived, is that right?”

62. His Honour expressed the view that he doubted that the fees would be waived as distinct from postponed “because the guidelines for waiving it are very strict”. The applicant said that there were possibilities under the guidelines as he was told by court staff and his Honour said “Well, as I said the only person who can now deal with it is for you to take the application to the Registrar at Wollongong and she won’t be there til Monday.” The applicant said that that would mean that he would be liable for daily fees and he had no choice but to leave. The primary judge repeated that he did not have the power to waive the fees. The applicant repeated that he had no choice but to withdraw.

63. The applicant asked whether a white folder could be returned to him. The primary judge said “You can take these folders. All of your folders you can have back.” The applicant evidently accepted the return of the folders that contained his affidavit and the other evidence he had tendered. The applicant said “If I can get all these folders that will be great”.

64. The applicant then made a submission as to costs. He said that he had been told that an appeal would cost him $440 which he paid and a couple of weeks before the hearing he was told that there was an $800 fee (sic) which he disputed and then on the second day of hearing he was told that the $800 fee had blown out to $25,000. He said that three years ago when he filed his appeal he was not told of any costs like that and was not told of any such costs until the second day of the hearing. “Had I been told three years ago that that was the case, I wouldn’t have lodged an appeal three years ago.”

65. Later that day, after the applicant had withdrawn and in his absence, the primary judge noted that the applicant “has withdrawn his appeal” and ordered that the appeal be dismissed with no order as to costs. His Honour said he would reserve the issue of the apportionment of court fees until a later date.

66. The hearing continued on the mother’s appeal on that day and the following day when it was adjourned to 26 April 2016. The hearing continued in the applicant’s absence until 29 April 2016. On 28 April 2016 the primary judge advised that:

“The other thing I probably need to say to you now might relieve you somewhat, is that I’ve been informed from the head Registrar in Wollongong via our registrar here that the court fees in this case are being waived.”

67. The hearing was concluded on 29 April 2016 and orders were made for the service of written submissions. The matter was adjourned to 3 June 2016 for judgment.

68. In his reasons of 3 June 2016 the primary judge recorded (at [289]) that he had been advised “this week”, that is, in the week commencing Monday, 30 May 2016, that the applicant had written to the other parties indicating his intention to file a notice of motion to “have my appeal reinstated”. This Court was told that this was done by an email from the applicant dated 31 May 2016. The email in question was not tendered on this application, but was quoted in part by the primary judge (paras [289] and [290]) included the following:

“290.   My application to reinstate my application. The Judge did have the power to grant a waiver of fees and deal with the waiver application. The judge handled this in a way to place pressure on a self-represented Father who was obviously not in employment and scarce funds to with draw [sic]. This was not done in an ethical manner. Wollongong Court registrar did at a much later date waive the fees. This should have been done by the Judge at the onset and undue pressure should not have been placed on the self-represented litigant. If my application is refused I will then take further legal actions to get a fair hearing. As I said from the onset if I get a fair hearing and lose I will walk away. I have not had that hearing.”

69. The primary judge took this as an application by the applicant to reinstate his appeal. His Honour held that, as the appeal had been dismissed on 14 April 2016, there was no power to set aside the order dismissing the appeal. His Honour said that if he did have the power to set aside the order of 14 April 2016, he would not exercise that power as it would not be in the interests of justice, nor in the interests of C to grant the application. Matters before the Children’s Court (and the District Court on appeal) are to proceed as expeditiously as possible in order to minimise the effect of the proceedings on the child or young person and his or her family and to finalise decisions concerning the long-term placement of the child or young person. His Honour noted a submission of C’s ILR that the applicant was primarily responsible for the lengthy delay in the proceedings; that the proceedings were held in Nowra at his behest and at significant cost to all the parties; that he regularly engaged in litigation for the smallest cause; and the proceeding had caused an unforgivable impact on C’s life. The primary judge did not expressly say whether he accepted or rejected the submission, but I infer that he accepted it. The primary judge noted the volume of evidence that the applicant had provided, observing that much was inadmissible as opinion or argumentative or speculation or irrelevance. He said that the applicant’s attitude to the proceedings had ultimately been to the detriment of C and referred to “many reports by independent Children’s Court clinicians and others” that suggested that the applicant would have failed to establish, on balance, that it would be in the best interests of C that C’s parental care and responsibility be returned to him (at judgment [296]).

70. The applicant complains that these adverse findings were made without his having the opportunity to be heard in relation to them. They were made by the primary judge in response to what he took to be an informal application for the appeal to be reinstated. It does not appear that the applicant sought a hearing, or filed a notice of motion for his appeal to be reinstated.

71. The primary judge’s reasons of 3 June 2016 were delivered orally. In his reasons the primary judge noted a submission by C’s ILR that if the court were to determine that C remain in the care of the Minister, “permanency planning for [C] … be amended utilising s 83(7) to provide … that all contact with [C] be it maternal or paternal is to occur within the school holidays …”. His Honour did not identify what reasons were advanced by C’s ILR for that submission. His Honour acceded to the submission but did not give reasons for doing so. It was common ground that no notice of the application by C’s ILR had been provided to the applicant. In his reasons the primary judge said:

“326. Under s83(7) I amend the permanency planning for [C] … to provide that (1) all contact with [C] be it maternal or paternal is to occur within the school holidays; …

327.   Further, as to contact orders concerning [C’s] father, pursuant to s86(6) I order that those orders are to apply for a period of 12 months today.”

72. It appears from these reasons that his Honour initially made an order in relation to contact between C and the applicant either, purportedly, under s 83(7) or as a contact order under s 86(6) of the Care Act.

73. When his Honour announced those orders, he asked the parties whether there was anything consequential arising out of them. There was the following exchange between the primary judge and the representative for the Secretary:

“NELIGAN:   Sorry, your Honour, I’m wondering in those circumstances where you are not entirely satisfied with [C’s] care plan, would you require the secretary to file an amended care plan, or an addendum—

HIS HONOUR: No.

NELIGAN: --to the care plan?

HIS HONOUR: No. I’d amend the current one. …”

74. In the ordinary course his Honour’s orders of 3 June 2016 would have been entered on JusticeLink. The JusticeLink record was not tendered. The orders tendered are said to have been made or given on 3 June 2016. They include the following:

“The Court finds:

…

2.   That there is no realistic possibility of restoration of [C] to [the applicant];

…

4.   That permanency planning for [C] … has been appropriately and adequately addressed.

The Court orders that:

1.   The orders made in the Children’s Court at Port Kembla on 5 July 2013 in case numbers 6-7/2011 are set aside.

…

3. Pursuant to section 79(1)(b) of the Children and Young Persons (Care and Protection) Act 1998, parental responsibility for the child [C] … is allocated to the Minister for Family and Community Services until [C] attains the age of 18 years.

…

6.   There be no orders as to costs.

…

The Court notes:

A.   That the appeal filed by [the applicant] was withdrawn and dismissed on 14 April 2016.

B.   Having considered paragraphs 319 to 329 of the judgment of A/Judge Williams delivered on 3 June 2016, the Secretary, Department of Family and Community Services has prepared an addendum to [C’s] Care Plan which is filed together with these orders.”

75. Those orders were signed and sealed by the primary judge on 23 June 2016. The “addendum” to the care plan referred to in note B was said to be an addendum to a care plan made under s 78 of the Care Act. Under the heading “Details about contact” the addendum provided for contact details as set out earlier in these reasons. The addendum also set out contact details for C with other relatives. The addendum also bears the signature and seal of the District Court and is dated 23 June 2016 and bears an order of the primary judge that “All of the above orders are for a period of twelve months”.

76. There are thus three possibilities as to the provision of the Care Act under which the primary judge acted in amending the contact arrangements. In his reasons of 3 June 2016 the primary judge said that he was acting under s 83(7) of the Care Act which deals with permanency planning, and that he was also acting under s 86 which relates to contact orders (see paras [138]-[150] below). On 23 June 2016 it appears that his Honour was acting under s 78 of the Care Act in approving an amendment to part of the care plan that had been previously approved by the Local Court.

77. The mother did not seek a review of the District Court’s orders. However, she supported the applicant’s claim that the District Court’s orders should be set aside.

Grounds of Review: Did the Applicant Withdraw from the Hearing or Withdraw his Appeal?

78. In his affidavit the applicant raised a question as to whether the primary judge had “the right to make findings against a Father that the Father had withdrawn his appeal?” This might be understood to include a question as to whether the applicant had in fact withdrawn his appeal. Another question that was raised was whether the primary judge ought to have warned the applicant when he withdrew from the hearing that a consequence of his withdrawal would be, or could be, that his appeal would be dismissed.

79. The primary judge was clearly of the view that the applicant was not merely withdrawing from the hearing, but was withdrawing his appeal. That was indicated by his offering to return to the applicant the five folders of documents he had tendered as evidence on his appeal. The applicant, by his conduct, confirmed the accuracy of his Honour’s understanding by willingly accepting their return.

80. The applicant was concerned to avoid a continuing liability to pay a daily hearing fee and he was concerned that his application for waiver of fees which was submitted to the Registrar in Wollongong might be unsuccessful. If his waiver application were unsuccessful, he would have remained liable for the hearing fees unless he had withdrawn his appeal.

81. On 31 May 2016 he sought to reinstate his appeal. This confirms that it was his understanding that his appeal had been withdrawn and reinstatement was required.

82. Clearly if the applicant had merely withdrawn from the hearing the primary judge would have been obliged to warn him that a consequence of his doing so might well be that his appeal would be dismissed. I do not think that any such warning was required where all parties understood that the applicant was withdrawing his appeal.

83. It follows that there was no procedural unfairness in the primary judge’s not having regard to the evidence adduced by the applicant prior to his withdrawal from the appeal.

The Procedural Fairness Claim:

84. It should be said at once that none of the applicant’s complaints demonstrates actual or apprehended bias on the part of the primary judge.

85. Judicial review of the orders of the primary judge is available under s 69 of the Supreme Court Act for jurisdictional error or error of law on the face of the record. The applicant relies upon jurisdictional error, namely, a denial of procedural fairness. The question whether the applicant was provided a fair hearing must have regard to all of the grounds of his complaint. But they must also be dealt with individually.

(A) Timetabling of Witnesses

86. The applicant was not denied procedural fairness because the primary judge did not order a timetable for the taking of evidence of his witnesses. The primary judge sensibly initially directed the parties to see if they could reach agreement in relation to timetabling issues. That agreement was not forthcoming. But it does not appear that the applicant thereafter asked for a specific order. The matter was complicated by the fact that the applicant was conducting lengthy, and in the primary judge’s view, often irrelevant and repetitious cross-examination of the Department’s witnesses. He insisted on calling witnesses to give oral evidence, even though they were not required for cross-examination, apparently for the purpose of expanding on evidence given in writing. He also insisted on calling witnesses whose evidence the primary judge considered would be irrelevant. It is an understatement to say that the hearing was a difficult one to manage. The primary judge had to act fairly towards all parties. That included resolving the objections by counsel for the Secretary to the applicant’s foreshadowed approach as to how his evidence would be led and to the issues to which it would relate. The fact that the primary judge had not arrived at a point where he could fix definite dates for the taking of evidence of the applicant’s witnesses did not result in any procedural unfairness.

(B) Daily Hearing Fees

87. The applicant’s evidence as to what he was told and what he understood about his liability to pay court fees must be approached with caution. The applicant asserted that he was told and understood that the only court fee payable on his appeal to the District Court was $450 on the filing of his appeal. That was clearly wrong. In his summons he acknowledged that an allocation hearing fee might be payable. In his affidavit the applicant deposed that it was not until the eighth day of hearing that the primary judge informed him that he needed to pay what he called a “court allocation fee” of $1,600 per day. As was stated earlier in these reasons, the transcript shows that the primary judge did not say that, and that the question of daily hearing fees was raised with the applicant prior to the commencement of the third day of hearing on Friday, 8 April 2016. At the beginning of the second day of the hearing on 7 April 2016 the applicant complained that his obligation to pay a $684 hearing fee had only been raised with him on that day. He was referring to the hearing allocation fee.

88. It is clear from the transcript that the applicant had issued many subpoenas. Under the Civil Procedure Regulation 2012 (NSW) from 1 August 2015 the fee for issuing a subpoena, whether for production of documents or to give evidence or both, was $80. (From 1 July 2014 to 31 July 2015 it was $78.) The fee became due when the subpoena was filed (clause 8). It may be inferred that the District Court issued invoices for the fees payable on the issue of subpoenas. Either the fees were paid, or they were waived, or they remained outstanding. It is unlikely that the subpoenas would have been issued without an invoice being raised.

89. The applicant was not cross-examined on this point. Whilst there are objective matters that raise doubt about the applicant’s assertion that he was unaware that any fee would be payable, other than the $450 filing fee, there is no reason to doubt that it was not until after the hearing had commenced (probably during or after the second day of hearing, but in any event before the commencement of the third day of hearing) that the applicant learned that he was liable to pay substantial daily hearing fees, unless those fees were waived.

90. The amendments to the Regulation that commenced on 1 August 2015 applied prospectively to the applicant’s appeal and to the mother’s appeal. The amendment to the Regulation was a change of practice or procedure that did not purport to affect retrospectively any right, liability, immunity or privilege that depended on past events (Maxwell v Murphy (1957) 96 CLR 261; [1957] HCA 7 at 267, 270 per Dixon CJ, 280 per Williams J, 286 per Fullagar J; Yrttiaho v Public Curator (Qld) (1971) 125 CLR 228; [1971] HCA 29; Rodway v The Queen (1990) 169 CLR 515 at 518; [1990] HCA 19; Thaina Town (on Goulburn) Pty Ltd v City of Sydney Council (2007) 71 NSWLR 230; [2007] NSWCA 300 at [122]; Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461; [2016] FCAFC 48 at [65]).

91. For completeness, s 30(1) of the Interpretation Act 1987 (NSW) is inapplicable because the amendment to the Regulation by imposing a daily hearing fee did not affect a legal proceeding in respect of a right, privilege, obligation or liability acquired, accrued or incurred under the Regulation. Section 30 mirrors the common law rule (ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1; [2014] HCA 18 at [27]).

92. The evidence as to how the applicant’s application for waiver of fees was dealt with is unsatisfactory. According to the applicant, the Registrar at Nowra refused to deal with his application for waiver of fees and said that he would have to make his application to the judge. However, the primary judge said on 14 April 2016 that he understood that the Registrar at Nowra had refused the application (see para [61] above). The primary judge took the view that he did not have power to waive the daily hearing fees. It appears that the Registrar in Sydney did not deal with the waiver application and it was referred to a “senior registrar” in Wollongong.

93. The hearing allocation fee became payable no later than 15 September 2015 when the proceeding was allocated a hearing date (cl 9(5)) of the Civil Procedure Regulation). Daily hearing fees become payable when a court or registrar gives written notice to the person liable to pay the hearing fee of the amount payable (cl 10(5)). There was no evidence that any notice had been given under cl 10(5) for payment of a daily hearing fee.

94. The applicant’s application for waiver of fees was not tendered.

95. It appears from what the primary judge said on 28 April 2016 that the Registrar in Wollongong had waived the “court fees in this case”. Otherwise, evidence of the decision made by a registrar in Wollongong was not tendered.

96. Although neither party referred to it, in my view the court can take judicial notice pursuant to s 144(1)(b) of the Evidence Act 1995 (NSW) of the fact that at all material times the District Court maintained a website (as it still does) which includes a tab headed “Forms and Fees”. By clicking on the tab a reader is informed of the fees prescribed by the Civil Procedure Regulation and can download a copy of the Guidelines for Waiver, Remission and Postponement of Fees. There was no cross-examination of the applicant to seek to establish whether he was aware of the website or the information as to fees contained on it. The necessary inference from his evidence quoted at [41] above is that he was unaware of that information. Even if the applicant had looked at the relevant part of the website at any time before July 2015, it would not have contained any information about payment of daily hearing fees. The amendments to the Regulation that commenced on 1 August 2015 were made on 17 July 2015.

97. There is no evidence that anything was done to alert the applicant that daily hearing fees of a substantial amount would become payable (unless waived) after the amendments of 1 August 2015 took effect. There is no evidence that when the matter was set down for hearing, or on any of the numerous occasions the proceeding was before a registrar or a judge after the amendments took effect and before the hearing commenced, the applicant was informed that substantial daily hearing fees would be payable (unless waived) for a five-week hearing. On the evidence before the Court it must be inferred that no such information was provided.

98. In Hamod v New South Wales [2011] NSWCA 375 Beazley JA (as her Honour then was), with whom Giles and Whealy JJA agreed, said:

“[309]    Courts have an overriding duty to ensure that a trial is fair: Dietrich v R [1992] HCA 57; 177 CLR 292. This entails ensuring that the trial is conducted fairly and in accordance with law: MacPherson v R [1981] HCA 46; 147 CLR 512 per Gibbs CJ and Wilson J at [16] 525. The duty reposes in the individual judicial officer hearing a case. In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented: R v Zorad (1990) 19 NSWLR 91 at 94–95. In MacPherson Mason J, at [31] 534, noted that:

‘A trial in which a judge allows an accused to remain in ignorance of a fundamental procedure which, if invoked, may prove to be advantageous to him, can hardly be labelled as ”fair”’.

[310]    However, the court’s duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. …

[311]    Insofar as the duty relates specifically to an unrepresented party, it has been said that a trial judge has an obligation to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial. The application of that principle will vary depending upon the circumstances of the case: Jae Kyung Lee v Bob Chae-Sang Cha per Basten JA at [48]. See also Abram v Bank of New Zealand (1996) ATPR 41-507, 43,341, 43,347; Microsoft Corporation v Ezy Loans Pty Ltd (2004) 63 IPR 54; Pezos v Police (2005) 94 SASR 154.

[312]    Although the duty of a trial judge to assist an unrepresented litigant is cast in active terms, it does not extend to advising the accused as to how his or her rights should be exercised: R v Gidley (1984) 3 NSWLR 168. Rather, the judge has to put the unrepresented litigant in the position of being able to make an effective choice, a duty which applies notwithstanding the adversarial character of a criminal trial: McPherson per Mason J at 534. The duty is the same in a civil proceeding, with such modifications as are called for to take account of civil procedures. However, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant: Bhagwanani v Martin (1999) 204 LSJS 449; [1999] SASC 406; Clark v New South Wales (No 2) [2006] NSWSC 914.

[313]    The touchstone at all times remains that of fairness.”

99. The obligation to inform a self-represented litigant about matters of practice and procedure, so far as is reasonably practicable, for the purpose of ensuring a fair trial, is an obligation of the Court, not only of the individual judge hearing the proceedings. In 2016 and 2017 it was and is reasonable to expect that a self-represented litigant in the District Court who has acknowledged that court fees will be payable during the proceedings will take steps that are readily available by checking the District Court’s website to find out what those fees are. But it does not follow that it is reasonable to expect that a self-represented litigant will continually check the website to see whether substantial changes have been made. Where there was a significant change to those fees, such as occurred on 1 August 2015, that change should have been brought to the applicant’s attention.

100. Because the applicant was unaware that daily hearing fees would become payable (unless waived) until at least the second day of hearing, he did not have the opportunity to seek a waiver of those fees in advance of their being incurred. The fact that ultimately a registrar in Wollongong waived fees, either the daily hearing fees or the hearing allocation fee (the evidence adduced at this hearing does not disclose which, although the primary judge was apparently of the view that it was the former), indicates that an application for waiver of the fees in advance of the hearing was likely to have enjoyed at least reasonable prospects of success.

101. The applicant complains that the primary judge refused to entertain his application for waiver of the fees. In my view, the primary judge was correct in holding that he did not have jurisdiction. However, he did have jurisdiction to entertain an application, if made to him by the applicant, to direct the registrar to deal with the application. This assumes, as the applicant asserts, that the Registrar refused to deal with the application. Alternatively, if the Registrar in Nowra had dealt with the application but refused it, as the primary judge said, then the primary judge would have had jurisdiction to review the Registrar’s decision to refuse the application. No application was made to the primary judge to direct the Registrar to deal with the waiver application, or, if the Registrar had done so, to review the Registrar’s decision. But the applicant was not advised of his right to seek such a direction or review. In this the primary judge was in error.

102. My reasons for these conclusions are as follows.

103. Clause 11 of the Civil Procedure Regulation relevantly provides as follows:

“11General power to waive, postpone and remit fees

(1)     The registrar of the court may, by order in writing, direct that the whole or any part of any fee payable to the registrar be waived, postponed or remitted, subject to such conditions (if any) as the registrar thinks fit to impose.

…

(3)     The powers conferred by this clause are to be exercised in accordance with such guidelines as may from time to time be published by the Attorney General.”

104. The Attorney General’s Guidelines for Waiver Remission and Postponement of Fees (the “Guidelines”) were not tendered on the application. They are however available as a public document on the website of the New South Wales Government Department of Justice headed “Uniform Civil Procedure Rules” under the tab “Courts & Tribunals”, and on the District Court’s website. The Court can take judicial notice of the Guidelines pursuant to s 144(1)(b) of the Evidence Act 1995 (NSW).

105. Under the heading “Discretion to postpone, waive or remit fees” the Guidelines state that “a decision-maker may waive, postpone or remit any fees payable, subject to such conditions as they see fit.” The Guidelines state that an application for postponement, waiver or remission should be considered within two working days and that when considering the application the decision-maker must consider the applicant’s financial, social and emotional needs. Under the heading entitled “Exercising the discretion to postpone” the Guidelines state that the decision-maker can consider any relevant matter, including whether the payment of the fee will cause the applicant undue financial hardship. The Guidelines state that an application (apparently for postponement) will generally be granted where the applicant is dependent on social security payments, lacks sufficient income and capital to either pay a fee or to obtain credit on reasonable terms to pay a fee or is otherwise indebted to an extent that he or she is incapable of obtaining credit on reasonable terms to pay a fee, or has been granted legal aid. Applications will generally be refused if the applicant has, in the opinion of the decision-maker, the ability to pay the fee or to obtain credit on reasonable terms to pay the fee. Examples given in the Guidelines and further explanations state that “it is usually preferable to postpone payment of a fee until after the proceedings are finalised instead of waiving the fee”. An example is given of an applicant on a disability pension with assets who has brought a claim for personal injuries where the proceedings are still pending. If the applicant succeeds he or she may be entitled to a costs order that would allow recovery of the court fee from the losing party. The Guidelines state that in this situation the fee would usually be postponed until the conclusion of the proceedings. The applicant could make another application if a costs order were not made at the conclusion of the proceedings. By contrast if the applicant faces criminal proceedings and has no assets and no real income and is unlikely to be ordered to pay costs, even if found not guilty at the trial, the fee would usually be waived rather than postponed. If the outcome of the proceedings would not involve an award of money and the applicant demonstrates that payment of the fee would cause undue hardship, or if the applicant’s circumstances and the nature of the proceedings mean that it would be oppressive to ever require the applicant to pay the fee, the fee may be waived.

Change to Contact Arrangements

137. As noted at [71] above in giving his oral reasons of 3 June 2016 the primary judge made orders in relation to contact arrangements under either or both of s 83(7) or s 86(6) of the Care Act.

138. The orders of the District Court as tendered on this application did not include any order made under either s 83(7) or s 86(6). Instead, as noted above at [14] and [75], the primary judge noted that the Secretary had prepared an addendum to C’s care plan. C’s care plan had been filed with the Children’s Court on 27 August 2012. As would be expected it dealt with many issues additional to contact arrangements. It seems to have been common ground that the care plan had been approved by the Children’s Court pursuant to s 78 of the Care Act. The better view is that ultimately the primary judge approved an addendum to the care plan pursuant to s 78 of the Care Act that was applicable to the appeal by reason of s 91(4) of the Care Act. On 23 June 2016 his Honour ordered that “all of the above orders [viz. those concerning contact] are for a period of twelve months”.

139. A care plan under s 78 is required to be presented to the court before final orders are made. Such a care plan must make provision for, amongst other things, the arrangements for contact between the child or young person and his or her parents, relatives, friends and other persons connected with him or her. Under s 78(4) the care plan is only enforceable to the extent to which its provisions are embodied in or approved by orders of the Children’s Court. Pursuant to s 91(4) the District Court has, for the purposes of hearing and disposing of an appeal, all of the functions and discretions that the Children’s Court has, including the functions under Chapters 5 and 6, including s 78.

140. The Care Act makes provision for contact arrangements either through a care plan developed through agreement of the parents (ss 3(a) and 38), or through a care plan presented by the Secretary (s 78), as was done in this case, or pursuant to contact orders under s 86. Under s 86(6) if the Children’s Court (or the District Court on appeal) decides that there is no realistic possibility of restoration of a child or young person to his or her parent, the maximum period that may be specified in a contact order made under s 86(1A) is 12 months. In the present case the contact orders ultimately were not made under s 86.

141. It is convenient to quote again the reasons of the primary judge (at [326] and [327]):

“[326] Under s 83(7) I amend the permanency planning for [C] and [J] to provide that (1) all contact with [C] be it maternal or paternal is to occur within the school holidays; and (2) the Department manage regular contact between [J] and [C].

[327]   Further, as to contact orders concerning [C]’s father, pursuant to s86(6) I order that those orders are to apply for a period of 12 months today.”

142. Section 83(3) provides that if the Secretary assesses that there is not a realistic possibility of restoration, the Secretary is to prepare a permanency plan for another suitable long-term placement for the child or young person and submit it to the Children’s Court for its consideration. Section 78A describes what is meant by permanency planning. It relevantly provides:

“78APermanency planning

(1)     For the purposes of this Act, permanency planning means the making of a plan that aims to provide a child or young person with a stable placement that offers long-term security and that:

(a)     has regard, in particular, to the principles set out in section 9 (2) (e) and (g), and

(b)     meets the needs of the child or young person, and

(c)     avoids the instability and uncertainty arising through a succession of different placements or temporary care arrangements.

(2)     Permanency planning recognises that long-term security will be assisted by a permanent placement.

…

(3) A permanency plan for an Aboriginal or Torres Strait Islander child or young person must address how the plan has complied with the Aboriginal and Torres Strait Islander Child and Young Person Placement Principles in section 13 ...”

143. Section 83(7) relevantly provides:

“83Preparation of permanency plan

…

(7)     The Children’s Court must not make a final care order unless it expressly finds:

(a)     that permanency planning for the child or young person has been appropriately and adequately addressed.”

144. This function of the Children’s Court was applicable to the District Court in hearing an appeal under s 91 by virtue of s 91(4).

145. Section 86(1) and (6) provide:

“86Contact orders

(1)     An order may be made by the Children’s Court doing any one or more of the following:

(a)     stipulating minimum requirements concerning the frequency and duration of contact between a child or young person and his or her parents, relatives or other persons of significance to the child or young person,

(b)     requiring contact with a specified person to be supervised,

(c)     denying contact with a specified person if contact with that person is not in the best interests of the child or young person.

…

(6) Despite subsection (5), if the Children’s Court decides (whether by acceptance of the Secretary’s assessment under section 83 or otherwise) that there is no realistic possibility of restoration of a child or young person to his or her parent, the maximum period that may be specified in a contact order made under subsection (1A) concerning the child or young person is 12 months.”

146. Section 87(1) provides:

“87Making of orders that have a significant impact on persons

(1)     The Children’s Court must not make an order that has a significant impact on a person who is not a party to proceedings before the Children’s Court unless the person has been given an opportunity to be heard on the matter of significant impact.”

147. There was a failure to provide procedural fairness to the applicant in relation to the contact arrangements approved or ordered on 3 or 23 June 2016. Contrary to the submissions of C’s ILR, the change in contact arrangements was not trivial. The effect of the change was that C could not have contact with his father on C’s birthday. The applicant also said, without contradiction, that he also could not have contact with C at Christmas because it was not possible to arrange such contact because no officer of FACS was available to supervise such contact at Christmas. Nonetheless, the change in contact arrangements that precluded contact with C on C’s birthday was distressing. I accept that the change was material and not trivial and has had a significant impact on the applicant. The applicant was denied procedural fairness when the change was made without notice to him, particularly having regard to the exchange quoted at [60] above.

148. In the primary judge’s reasons for judgment it seems that his Honour considered that the change to contact arrangements was part of permanency planning. His Honour said that he was making the order under s 83(7). But the contact arrangements, particularly pursuant to orders that were expressed to operate only for 12 months, were not a plan to provide C with a stable placement that offered long-term security. In the following paragraph, [327], the primary judge said that he was making contact orders pursuant to s 86(6). At para [325] he said that he was making all of those orders on that day (viz. 3 June 2016). However, the orders as entered did not indicate that contact orders were made pursuant to s 86(6). If the order were made under s 86(6) it was made in breach of s 87(1) because it had significant impact on the applicant who had ceased to be a party to the proceedings and had not been given an opportunity to be heard.

149. I infer that the orders pronounced on 3 June 2016 as being made under either s 83(7) or s 86 of the Care Act, or both, were corrected by the order dated 23 June 2016. No JusticeLink record of orders that would be expected to have been entered on 3 June 2016 was tendered. Any correction of the orders announced on 3 June 2016 might have been available either under UCPR r 36.16(1) if the orders had not been entered or, perhaps, under the slip rule (UCPR r 36.17).

150. The order could not have been justified under s 83(7) as it did not relate to permanency planning. That concept is described in s 78A of the Care Act (set out at [142] above) and refers to the making of a plan that aimed to provide a child or young person with stable placement offering long-term security. Changes to contact arrangements would not be an essential feature of any such plan. Section 83(7) provides that the Children’s Court must not make a final care order unless it expressly finds that permanency planning for the child has been appropriately and adequately addressed. That function of the Children’s Court was applicable to the District Court in hearing an appeal under s 91 by virtue of s 91(4). Whether the primary judge made such a finding is not a ground of review.

151. Whether the final order made was an approval to an addendum of the care plan, or a contact order under s 86, or what was purportedly described as a change to permanency planning, reflected in the change of contact arrangements between C and his father, the order was made without procedural fairness because the applicant was not given notice of the proposed change.

152. What follows from this conclusion? The District Court’s approval of the addendum to the care plan (if that is how the orders of 23 June 2016 are to be understood) was only for a period of 12 months. If the orders were intended to be made under s 86 as the primary judge said in his reasons of 3 June 2016 they were also made only for a period of 12 months. That period expired before the hearing of this summons. There is no longer on foot any order, nor any approval of an addendum to a care plan, that restricts contact between C and the applicant to school holidays. A declaration should be made to that effect.

153. Although the applicant’s summons only sought relief by way of judicial review under s 69 of the Supreme Court Act the court has power in its inherent jurisdiction and in its jurisdiction under ss 23 and 75 of the Supreme Court Act to make a declaration to quell a controversy between the applicant and FACS or C’s ILR as to the applicant’s entitlement to notice of a proposed change to his contact arrangements with C (Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 595-6; [1992] HCA 10). Any change would be likely to have a significant impact on the applicant and C.

154. To avoid doubt it should also be declared that the applicant is entitled to be heard on any application for a care order or for amendment to the care plan filed with the Local Court on 27 August 2012 that would seek to change the contract arrangements as provided for in that care plan.

Conclusion and Orders

155. Section 88 of the Care Act does not apply to these proceedings (Re Kerry (No 2)). Nonetheless, because the proceedings involve the protective jurisdiction that focuses on the interests of the child, it does not necessarily follow that costs should simply follow the event (CCR v PS & Anor (No 2) (1986) 6 NSWLR 622 at 640; CAC v Secretary, Department of Family and Community Services [2014] NSWSC 1855 at [130]; CAC v Secretary, Department of Family and Community Services (No 2) [2015] NSWSC 344 at [15]-[17]).

156. The applicant has succeeded in establishing that the change to the contact arrangements between he and C should not have been made without his having had an opportunity to be heard. He has failed on his application to set aside the orders of 14 April 2016. In all the circumstances I consider that the appropriate order is that there be no order as to costs of these proceedings.

157. For these reasons I propose the following declarations and orders:

1. Order that the time for the commencement of these proceedings be extended up to the date of the filing of the applicant’s summons;

2. Declare that no order of the District Court or the Children’s Court, whether as a care order purportedly made under s 86 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) or by way of approval of a care plan under s 78 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) requires that the contact arrangements between the applicant and C occur during the school holidays;

3. Declare that the applicant is entitled to be given notice of any proposal by the first respondent or the third respondent to vary the contact arrangements between the applicant and C, as provided for in the care plan filed with the Children’s Court on 27 August 2012, and to be given a reasonable opportunity to be heard in relation to any such proposal;

4. Order that the applicant’s summons be otherwise dismissed with no order as to costs.

158. SACKVILLE AJA: I am grateful to White JA for setting out the facts, the legislation and the issues that arise on this application for judicial review.

159. The facts of this case prompt two observations. The first concerns the difficulties that often confront trial judges in ensuring that unrepresented litigants receive a fair trial. The second concerns the danger that substantial fees imposed by governments will impede the ability of people to enforce their rights or seek remedies for legitimate grievances through the courts.

160. There are many categories of unrepresented litigants. Some speak English while others do not or do so imperfectly. Some have little or no knowledge of court rules and procedures. Others have considerable experience of and knowledge about the judicial system. Those who have knowledge and experience sometimes pretend ignorance in order to gain what they perceive as an advantage in the litigation.

161. Many unrepresented litigants are polite and clearly honest when making statements or conveying information to the Court. Others may be aggressive and unpleasant in their demeanour. Some unrepresented litigants (like some witnesses) are quite prepared to make claims or accusations that have no evidentiary support or are even manifestly untrue.

162. Some unrepresented litigants, while not necessarily agreeing with unfavourable rulings or decisions, are prepared to accept them as the product of an independent and reasonably fair process. Others refuse to accept the legitimacy of any adverse rulings or decisions and are quick to attribute their lack of success to bias on the part of the judicial officers concerned and perhaps to dishonesty in others involved in the process. Litigants who refuse to accept decisions may be prone to making repeated attempts to reagitate claims that have been definitively rejected.

163. White JA has referred to the duty on a judicial officer to ensure that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented. The principles are conveniently summarised in the extract from Hamod v New South Wales [1] reproduced in White JA’s judgment. It is not necessarily easy for a trial judge, when faced with an obstreperous, recalcitrant or unduly argumentative litigant to ensure that the principles are adhered to. Nonetheless, the fundamental requirement is that an unrepresented litigant, like all litigants must be afforded a fair trial.

     1. [2011] NSWCA 375 at [309]-[313] (Beazley JA, Giles and Whealy JJA agreeing). See also SZRUR v Minister for Immigration and Border Protection (2013) 445 FCR 146; [2013] FCAFC 146 at [37] (Robertson J, Allsop CJ and Mortimer J agreeing).

164. The present case also demonstrates that imposing an obligation on a party to pay substantial fees as a condition of bringing and pursuing court proceedings can act as a serious disincentive and a formidable barrier to persons seeking to enforce their rights or to obtain relief available only through the courts. This is particularly so when the regime imposes daily hearing fees in respect of litigation of uncertain duration. The transcript of the District Court appeal makes it clear that whatever the merits of the applicant’s complaints, the threat of having to pay a very large amount in court fees played a substantial part in his decision not to continue with the proceedings.

165. The Supreme Court of the United Kingdom has recently confirmed what their Lordships described as “the constitutional right of unimpeded access to the courts”. [2] The Supreme Court held that subordinate legislation authorising the imposition of court fees has to be read down so as to permit only such a degree of intrusion of the right of access to the courts as is reasonably necessary to fulfil the objective of the provision in question. [3] While the Supreme Court accepted that the United Kingdom Parliament can override the “constitutional right”, clear statutory language is required to do so. Language of that character was not present in the legislation authorising fees payable by applicants seeking relief in the employment tribunal (the relevant court).

     2. R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51 at [76]; [2017] WLR 409 (Lord Reid, Lords Neuberger, Mance, Kerr, Wilson and Hughes agreeing) citing Attorney-General v Times Newspapers Ltd [1974] AC 273 at 309-310 (Lord Diplock.)

     3. R (on the application of UNISON) v Lord Chancellor at [180].

166. In reaching this conclusion, the Supreme Court analysed empirical evidence presented in the case. The analysis demonstrates that in practice excessive court fees can deter people from pursuing legitimate claims through the courts. [4]

     4.    R (on the application of UNISON) v Lord Chancellor at [90] ff.

167. Australian courts seem to have given no consideration to the possibility that the right of access to the courts is an element of the rule of law that perhaps might have constitutional dimensions. If so, legislation authorising court fees that effectively deter people from seeking to enforce their rights might have to be tested against constitutional principles. However, no such issue arises in the present case.

168. White JA has outlined the course of the District Court hearing preceding the applicant’s statement to the Court on the seventh day that he had no choice but to withdraw from the proceedings. I do not doubt that it was reasonable for the primary Judge to infer that the applicant intended to withdraw his appeal, as distinct from simply withdrawing from the hearing with his appeal remaining on foot. In my view, however, the reasonableness of that inference does not resolve the question of whether the primary Judge complied with his obligation:

“to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial.” [5]

5.    Hamod v New South Wales at [311] (Beazley JA).

169. When the applicant stated that he had no choice but to withdraw, the primary Judge responded “All right. Okay”. A few minutes earlier the exchange reproduced in White JA’s judgment (at [49**] above) took place. In that exchange, the primary Judge explained to the applicant that if he withdrew from the proceedings the care plan would remain the same so far as it concerned him.

170. This information was important (although it turned out to be inaccurate). However, at no time was the applicant informed that if he withdrew his appeal, the appeal would be dismissed. An order was made dismissing the appeal, but that happened after the applicant had left the courtroom.

171. In the absence of an explanation, there is room for misunderstanding even if the unrepresented litigant has had some experience of litigation. In the present case, for example, one consequence of the order dismissing the appeal was that the applicant had to show “a significant change in any relevant circumstances” to obtain leave to apply to vary the care orders. [6] It is not entirely clear whether the applicant appreciated that this would be the result if he withdrew from the proceedings.

     6. Children and Young Persons (Care and Protection) Act 1998 (NSW) (CYP Act), s 90(1), (2), (3).

169. If an unrepresented claimant announces an intention to withdraw from proceedings, particularly if the announcement is made well into a lengthy but incomplete hearing, ordinarily a trial judge should inform the litigant of the consequences of withdrawing. It may seem self-evident that withdrawal from pending proceedings will lead to the proceedings being dismissed but that is not necessarily so. In some cases, for example, it may be open to a party to seek leave to discontinue the proceedings. In any event, the consequences of an order dismissing proceedings are usually so serious that a court should explain that it proposes to make such an order if the party purporting to withdraw does so.

170. Although the primary Judge should have informed the applicant of the consequences of withdrawing the appeal, I do not consider that the failure to do so constituted a denial of procedural fairness in the particular circumstances of this case. A person alleging a breach of procedural fairness may have to adduce evidence of the steps he or she would have taken if the alleged breach had not occurred. [7] This is in my view such a case. The course of the hearing in the District Court makes it very likely that even if the applicant had been informed that his withdrawal would result in his appeal being dismissed, he would still have withdrawn the appeal. The insurmountable problem so far as he was concerned was his liability to pay court fees for each day the hearing continued. If the applicant wished to claim that he would not have withdrawn from the proceedings had he known the appeal would be dismissed, it was necessary for him to put on evidence to that effect. It would then have been open to the Secretary to test that evidence.

     7. Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1; [2004] HCA 62 at [34] (McHugh, Gummow, Callinan and Heydon JJ).

171. I agree with White JA that the primary Judge erred in not advising the applicant of his right to seek a direction that the Registrar hear the application to waive the court fees or, alternatively, of his right to seek review of the Registrar’s decision. I respectfully disagree, however, that this did not constitute a denial of procedural fairness.

172. The applicant’s liability to pay daily fees was clearly at the forefront of his mind once he learned the true position on the second day of the hearing. His continuing liability to pay the ever mounting court fees was a substantial factor, if not the only factor, in his decision to withdraw from the proceedings. Had he been given correct information he would have had the opportunity to remove a very substantial obstacle to his proceeding with the appeal and may well have succeeded in removing the obstacle. This in my view went to the heart of the applicant receiving a fair hearing.

173. It is true, as Beazley P points out, that judges would not necessarily be aware of the processes involved in seeking a waiver of court fees. In the present case, however, the primary Judge became involved in discussions with the applicant as to whether the obligation to pay court fees could be waived and, if so, who had power to grant the waiver.

174. On the second day of the hearing the primary Judge stated that if he could waive the fees he would do so. On the fourth day of the hearing his Honour informed the applicant that he (the primary Judge) lacked the power to waive the court fees but that a Registrar could give the necessary directions.

175. The issue of a waiver of fees was not an incidental matter arising in the course of the District Court hearing. The issue was central to the applicant’s concerns as to whether he could continue with his appeal. The primary Judge, in an endeavour to assist the applicant, plainly gave careful consideration to his own powers and to the procedures governing the application to waive court fees. His Honour had previously told the applicant, in effect, that he (his Honour) would do what he could to waive the applicant’s liability to pay court fees. Although his Honour informed the applicant that a Registrar had the power to waive the requirement to pay court fees, the applicant was not told that he could apply for a direction that the Registrar entertain a waiver application nor that the Court could review an unfavourable decision by a Registrar.

176. The information provided by the primary Judge was incomplete. Since his Honour had investigated the waiver issue at the instigation of the applicant and had taken it on himself to explain the situation, procedural fairness required that the information as to the available procedures be both reasonably complete and accurate. Because the information was incomplete, the applicant was denied the opportunity to deal effectively with the impediment to continuing with his appeal.

177. Had the applicant acted promptly to seek judicial review (regardless of any flaws in his initiating process) he would be entitled to relief based on a denial of procedural fairness. But he did not act promptly. As White JA has pointed out, the applicant delayed eleven months before challenging the decision of the District Court. [8] The delay has not been adequately explained.

     8. See at [125] above.

178. As White JA also points out, where a denial of procedural fairness is established, relief is not lightly to be refused on discretionary grounds. [9] But an order setting aside the primary Judge’s dismissal of the appeal would effectively reopen the appeal. To do so after such a lengthy delay creates a serious risk of detriment to the child whose safety, welfare and well-being are paramount considerations under the legislation. [10] Unlike many claimants whose claims are dismissed, the applicant is not permanently shut out from seeking a change in the orders affecting his parental rights. He must now show a significant change in relevant circumstances, but the opportunity is there.

     9. See at [123] above.

     10. CYP Act at s 9(1).

179. I should make it clear that although I consider that the primary Judge erred in failing to advise the applicant of his rights in relation to the waiver of court fees, I do not consider that the alleged failure of the Court’s Registry to inform the applicant prior to the hearing of his liability to pay daily hearing fees constituted a denial of procedural fairness. The applicant’s claim in this respect was not clearly formulated and raises factual issues that were not the subject of evidence and therefore were not explored. It is clear, for example, that by the third day of the District Court hearing (7 April 2016) the applicant was aware that hearing fees were payable. It is not clear, however, when he first became aware or should have become of the hearing fees for which he would be liable in the absence of a waiver of the fees.

180. I agree with the orders proposed by White JA except for the second of the declarations his Honour proposes (see above at [157](3)). It is not a fatal objection to the making of a declaration that an unrepresented applicant has not sought relief in that form. However in my view the declaration is not necessary for the resolution of the present dispute and lacks the necessary clarity and precision required for declaratory relief. [11]

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11.    JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow and Lehane’s Equity Doctrines and Remedies (5th ed 2015, LexisNexis) at [19-255].

Endnotes