Director-General, Community Services Directorate v WS
[2019] ACTCA 4
•22 February 2019
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 House v The King (1936) 55 CLR 499 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 alternative
(c)The matter is remitted to the ACT Childrens Court for determination according to law.
(d)Any such order as this Honourable Court sees fit.
At the commencement of the hearing Counsel for the appellant said that the appellant no longer sought the primary order requested in the Notice of Appeal but, in common with the respondent, wished the matter to be returned to the Childrens Court, as ordered in the court below.
This change immediately raised the question of whether the appeal was competent because there was no longer an order which was being contested. The response from the appellant, after this fundamental issue was pointed out, was that it still wished to proceed because it wished to challenge the reasoning in the court below that had led to the matter being remitted to the Childrens Court.
The appellant’s approach is not supported by the law.
Section 37E of the Supreme Court Act 1933 (ACT) provides:
37EAppellate Jurisdiction
(1)When exercising its appellate jurisdiction under this part, the court is to be known as the Court of Appeal.
(2) The following matters may be brought before, and heard by, the Court of Appeal:
(a)appeals in relation to orders of the court (except orders of the registrar, the Full Court exercising appellate jurisdiction or the Court of Appeal itself);
(b)appeals under section 37S (Reference appeal in relation to proceeding);
(c)cases stated or questions reserved by the court about any matter in relation to which an appeal may be brought to the Court of Appeal;
(d)applications under part 8AA (Acquittals).
(3)However, an appeal may not be brought against an order made by the court sitting as the Court of Disputed Elections under the Electoral Act 1992, section 252.
(4)Also, an appeal may be brought against an interlocutory order of the court constituted by a single judge, or the associate judge, only with leave of the Court of Appeal.
(5)In this section: registrar includes a deputy registrar.
At the commencement of the hearing of this appeal, as referred to at [5], the appellant submitted that it was not sought to “disturb the outcome”, that is that the matter should be remitted for hearing to the Childrens Court for determination according to law:
Your Honours, in relation to the appeal as a whole, the appeal raises issues of statutory construction, in relation to the Children and Young Persons Act. The Director-General does not seek to disturb the outcome of the proceedings before her Honour, in the sense that her Honour ordered the matter be remitted for hearing to the Childrens Court. The appellant does not seek to disturb that result but seeks to persuade the court that her reasons for remitting it were in error.
Relevant Law
10. In R v Ireland (1970) 126 CLR 321 at 330, Barwick CJ (McTiernan, Windeyer, Owen and Walsh JJ agreeing) stated the following:
In a proper use of terms, the only judgment given by a court is the order it makes. The reasons for judgment are not themselves judgments though they may furnish the Court's reason for decision and thus form a precedent.
11. In Driclad Pty Ltd v Commissioner of Taxation (1968) 121 CLR 45 (Driclad), the Court considered an appeal from a decision of Taylor J. Barwick CJ and Kitto J at [1] summarised the decision of Taylor J as follows:
In each of the fourteen appeals his Honour made an order allowing the appeal and setting aside the assessment. On the face of the orders, therefore, the taxpayers appeared to have succeeded completely. The reasons for judgment, however, showed that his Honour, while holding that the assessments made against the two company taxpayers were excessive, had declined to hold that they were as excessive as those taxpayers had contended that they were. The reasons also showed that his Honour, while holding that the assessments made against the trustee appellants were excessive because a part of the income of their trust fund was exempt from tax, had declined to uphold their contention that the whole of that income was exempt from tax.
12. Barwick and Kitto JJ stated the following at [4]:
The taxpayers lodged notices of appeal to the Full Court which were expressed as if the appeals were against the reasons of Taylor J. relating to the "B" part of the fund rather than against the orders that he made. Needless to say, this was erroneous, because it is of the nature of appeals, as s. 73 of the Constitution recognizes, that they lie only against "judgments, decrees, orders and sentences", not against reasons. The word "judgments" in this connexion refers only to operative judicial acts, and is not used, as it often is in other contexts, as a convenient abbreviation for reasons for judgment.
13. In effect, an expression of reasons does not give rise independently to a right of appeal. However, in Driclad, the Court did find that because relief of the nature sought by the appellants was available to the Court, as a result, the appellate jurisdiction of the High Court was invoked.
14. In Westport Insurance Corporation v Gordian Runoff Limited [2011] HCA 37; 244 CLR 239, at [77], Heydon J stated:
Appeals lie only against orders, not against the reasoning which led to them. An order is the outcome of legal proceedings; it is distinct from the process which led to that outcome.
15. Basten JA (Beazley P and Bathurst CJ agreeing) in Patsalis v Attorney-General for New South Wales [2013] NSWCA 343; 85 NSWLR 343 stated the following at [23] in relation to a similar issue:
The Supreme Court Act provides for an appeal from "any judgment or order of the Court in a Division": s 101(1)(a). Similar language is found in s 73 of the Constitution ("judgments, decrees, orders and sentences"), in the Judiciary Act (ss2 and 35) and many other statutes conferring appellate jurisdiction. One point made in cases discussing these provisions is that a finding of fact or a ruling on a submission is not, of itself, an operative judicial act: The Commonwealth v Mullane [1961] HCA 28; 106 CLR 166 (Dixon CJ); Salter v Director of Public Prosecutions (NSW) [2009] NSWCA 357; 75 NSWLR 392 (Spigelman CJ). Another is that a reference to a "judgment" may mean an operative order as distinguished from reasons for judgment: Driclad Pty Ltd v Commissioner of Taxation (Cth) [1968] HCA 91; 121 CLR 45 at 64 (Barwick CJ and Kitto J). Relevantly for present purposes, it has never been doubted that the language applies only to the exercise of judicial power. That is made clear by its context, namely a judgment or order "of the Court in a Division". In a passage cited with approval in this Court in Johnston v Nationwide News Pty Ltd [2005] NSWCA 17; 62 NSWLR 309 at [30] (Spigelman CJ) and in Salter at [19] (Spigelman CJ), King CJ in Legal Complaints Committee v A Practitioner (1987) 46 SASR 126 at 127 stated:
"A judgment or order is a judicial act which decides the question or one of the questions which is raised for decision in the particular proceedings then before the court or judge."
16. The Court is not satisfied that, consequent upon the different approach taken by the appellant, there remains an appeal pursuant to s 37E(2)(a). For this reason alone the appeal must be dismissed.
17. Even if the Court were able, within the scope of the Supreme Court Act, to deal with the purported appeal on the basis that guidance might be obtained from any comments made about the reasons stated by the primary judge in reaching her decision, this is not an appropriate vehicle to take that course.
18. Both parties agree that the matter should be returned to the Childrens Court. Both parties agree that upon return to that court there should be an enquiry about the jurisdictional issue fundamental to the making of a care and protection order. That issue is whether, pursuant to s 464 a decision must be made about whether or not the child is in need of care and protection. There is accordingly no matter upon which the Childrens Court, in dealing with the subject child, is in need of guidance.
19. The parties informed the court that the matter had already been remitted to the Childrens Court which was awaiting the outcome of the appeal. There is no reason why the Childrens Court should not now proceed, as soon as possible, with the matter before it.
Orders
20. The appeal is dismissed.
| I certify that the preceding twenty [20] numbered paragraphs are a true copy of the Reasons for the Court. Associate: Date: 22 February 2019 |
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