Director-General, Community Services Directorate v WS - [2019] ACTCA 4

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Director-General, Community Services Directorate v WS
Citation:	[2019] ACTCA 4
Hearing Date:	13 February 2019
DecisionDate:	22 February 2019
Before:	Elkaim, Loukas-Karlsson and Rangiah JJ
Decision:	The appeal is dismissed.
Catchwords:	APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – In General and Right of Appeal – whether appeal incompetent – appeal not the appropriate vehicle to obtain guidance on primary judge’s comments – matter previously remitted to Childrens Court – appeal dismissed
Legislation Cited:	Children and Young People Act 2008 (ACT) ss 345, 349, 424-429, 464, 467 Supreme Court Act 1933 (ACT) s 37E
Cases Cited:	Patsalis v Attorney-General for New South Wales [2013] NSWCA 343; 85 NSWLR 343 CP v Director-General of Community Services Directorate and Ors [2017] ACTSC 394 Driclad Pty Ltd v Commissioner of Taxation (1968) 121 CLR 45 House v The King (1936) 55 CLR 499 R v Ireland (1970) 126 CLR 321 at 330 WS v Director-General, Community Services Directorate [2018] ACTSC 144
Parties:	Director-General, Community Services Directorate (Appellant) WS (First Respondent) OV (Second Respondent) WO (Third Respondent)
Representation:	Counsel Mr K Archer (Appellant) Ms L Snelling (First Respondent) No Appearance (Second Respondent) Jeanine Lloyd (Third Respondent)
Solicitors ACT Government Solicitor (Appellant) Jeanine Lloyd & Associates (Third Respondent)
File Number:	ACTCA 32 of 2018
Decision under appeal:	Court/Tribunal: ACT Supreme Court Before: McWilliam AsJ Date of Decision: 22 May 2018 Case Title: WS v Director-General, Community Services Directorate Citation: [2018] ACTSC 144

THE COURT

Introduction

This is an appeal against a decision of the Supreme Court in WS v Director-General, Community Services Directorate [2018] ACTSC 144 (the primary judgment). That decision was an appeal from a decision of the Childrens Court of the ACT dated 5 August 2016.

In the primary judgment, McWilliam AsJ made the following orders:

(a)The appeal is upheld.
(b)The orders of the Childrens Court made on 5 August 2016 in relation to the child, ‘WO’, are set aside.
(c)The matter is remitted to the Childrens Court for further determination according to law.
(d)The cross-appeal filed 7 June 2017 is dismissed.
(e)Any party wishing to make an application for costs is directed to do so within seven days of these orders being made.

The appellant appeals from all the orders on the following grounds:

(a)The learned Associate Judge erred in finding that determination of an application for an extension of a care and protection order pursuant to s 466 of the Children and Young People Act 2008 (ACT) (the Act) required application of the criteria for making a care and protection order provided by s 464 of that Act; and
(b)The learned Associate Judge erred in finding that the Magistrates decision that it was not in the best interests of the child to live with her father was unreasonable.

The appellant initially sought the following orders:

(a)The orders made by her Honour are vacated.
(b)That the appeal before her Honour is dismissed; or in the…

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: [2019] ACTCA 4
Decision Date: 22 February 2019

CaseChat Overview and Summary

The Director-General of the Community Services Directorate appealed to the Court of Appeal of the Supreme Court of New South Wales against comments made by a primary judge. The dispute concerned the appropriate forum for obtaining guidance on the primary judge's remarks, particularly after the matter had been remitted to the Childrens Court.

The central legal issue before the Court of Appeal was whether an appeal was the competent and appropriate procedural mechanism to challenge or seek clarification on the comments made by the primary judge in the circumstances of the case. The court was required to consider the nature of the appeal and whether it could properly address the appellant's concerns, especially given the prior remittal of the substantive matter.

The Court of Appeal reasoned that an appeal is not the appropriate vehicle for a party to obtain guidance or clarification on comments made by a primary judge, particularly when the substantive proceedings have already been remitted to another court for further determination. The court found that the appeal was incompetent as it did not lie against the specific type of judicial pronouncements being challenged. Consequently, the appeal was dismissed.

Orders

Orders of the court

The appeal is dismissed.

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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