Director-General Community Services Directorate v HJ - [2018] ACTSC 6

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Interpretation Act1901 (Cth) s 15AA Child Protection Act 1999 (Qld) s 116 Children and Young People Act 1999 (ACT) (repealed) ss 56, 297 Children and Young People Act 2008 (ACT) ss 336, 724, 725, 726, 727, 835, 836, 837, 838, 889 (repealed), Pt 19.6, Chs 17, 19 Court Procedures Act2004 (ACT) s 69 Family Law Act 1975 (Cth) s 117 Legal Profession Act 2007 (Tas) s 388 Legislation Act 2001 (ACT) ss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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] ACTSC 6
Decision Date: 30 January 2018

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

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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