Director-General Community Services Directorate v HJ

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Director-General Community Services Directorate v HJ

Citation:

[2018] ACTSC 6

Hearing Date:

29 November 2017

DecisionDate:

30 January 2018

Submissions Last Received:

1 December 2017

Before:

McWilliam AsJ

Decision:

1.    The appeal is allowed.

2.    The order of the Childrens Court made on 5 June 2017 is set aside.

3.    The matter is remitted to the Childrens Court for further determination according to law.

Catchwords:

APPEAL – COSTS – Children and Young People Act 2008 (ACT) – appeal from order made for costs to be paid by the appellant in proceedings brought under the care and protection chapters – whether Children and Young People Act 2008 (ACT) operates to the exclusion of the general costs discretion under the Court Procedures Rules 2004 (ACT) – whether the specific provisions of the Children and Young People Act 2008 (ACT) overrule the more general costs provisions in the Court Procedures Rules 2004 (ACT) – legal error established – appeal upheld

Legislation Cited:

ACT Civil and Administrative Tribunal Act 2008 (ACT) s 48

Acts Interpretation Act1901 (Cth) s 15AA
Child Protection Act 1999 (Qld) s 116
Children and Young People Act 1999 (ACT) (repealed) ss 56, 297
Children and Young People Act 2008 (ACT) ss 336, 724, 725, 726, 727, 835, 836, 837, 838, 889 (repealed), Pt 19.6, Chs 17, 19
Court Procedures Act2004 (ACT) s 69
Family Law Act 1975 (Cth) s 117
Legal Profession Act 2007 (Tas) s 388
Legislation Act 2001 (ACT) ss 7, 138, 139
Magistrates Court Act 1930 (ACT) ss 274, 276, 287

Court Procedures Rules 2006 (ACT) rr 1721, 1722

Cases Cited:

Casey v Alcock [2009] ACTCA 1; 3 ACTLR 1

Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249
CIC Australia Ltd v ACT Planning and Land Authority and Ors [2013] ACTSC 96; 277 FLR 26
ES v The Director-General of the Community Services Directorate (No 2) [2016] ACTSC 7
Federal Commissioner of Taxation v Unit Trend Services Pty Ltd [2013] HCA 16; 250 CLR 523
Haureliuk v Furler [2012] ACTCA 11; 6 ACTLR 151
Hunter Development Brokerage Pty Ltd v Cessnock City Council (No 2) [2006] NSWCA 292; 68 NSWLR 177
JL v Director-General Community Services Directorate [2015] ACTSC 24
Metropolitan Gas Co v Federated Gas Employees’ Industrial Union (1924) 35 CLR 449
Ombudsman v Laughton [2005] NSWCA 339; 64 NSWLR 114
Oxenbould v The Solicitors’ Trust (No 2) [2011] TASSC 63
Penfold v Penfold (1980) 144 CLR 311
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
R v Wallis; Ex parte Employers Association of Wool Selling Brokers (1949) 78 CLR 529
Smith v R (1994) 181 CLR 338
W v Director-General, Community Services Directorate [2014] ACTSC 404

Tests Cited:

Explanatory Memorandum, Children and Young People Bill 1999 (ACT)

Explanatory Statement, Children and Young People Bill 2008 (ACT)
Explanatory Statement, Court Procedures (Consequential Amendments) Bill 2004 (ACT)
Leeming M, Resolving Conflicts of Laws (Federation…

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Details
Case
[2018] ACTSC 6
Decision Date

CaseChat Overview and Summary

The case involves an appeal by the Director-General Community Services Directorate against an order from the Children's Court, dated 5 June 2017, which mandated that costs be paid by the appellant in proceedings brought under the care and protection chapters of the Children and Young People Act 2008 (ACT). The central issue in the appeal was whether the specific provisions of the Children and Young People Act 2008 (ACT) effectively exclude the general costs discretion outlined in the Court Procedures Rules 2004 (ACT). The court was required to determine if the Act's provisions overrule the more general costs provisions in the Court Procedures Rules.

The court examined the legislative intent behind the Children and Young People Act 2008 (ACT) and the Court Procedures Rules 2004 (ACT). It considered whether the Act’s specific provisions concerning costs in care and protection proceedings were intended to override the general rules. The court found that there was a legal error in the Children's Court's decision, as the specific statutory provisions did not exclude the application of the general costs rules. The court concluded that the Children and Young People Act 2008 (ACT) should be interpreted in a manner that does not automatically nullify the broader discretion provided by the Court Procedures Rules 2004 (ACT).

In light of the legal error identified, the appeal was allowed. The order of the Children's Court made on 5 June 2017 was set aside, and the matter was remitted to the Children's Court for further determination according to law. The court's decision underscores the importance of interpreting legislation in a manner that does not inadvertently restrict the application of procedural rules unless such an intention is clearly expressed.

Orders

Orders of the court

1. The appeal is allowed.

2. The order of the Childrens Court made on 5 June 2017 is set aside.

3. The matter is remitted to the Childrens Court for further determination according to law.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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