Director General, New South Wales Department of Community Services v Childrens Court of New South Wales; Re Peter & Ors

[2002] NSWSC 679

Reported Decision: (2002-2003) 56 NSWLR 555

New South Wales

Supreme Court

CITATION:	Director General, New South Wales Department of Community Services v Childrens Court of New South Wales & Ors; Re Peter & Ors [2002] NSWSC 679
FILE NUMBER(S):	SC 11416/02
HEARING DATE(S):	27/5/02;28/5/02
JUDGMENT DATE:	31 July 2002
PARTIES :	Director General, New South Wales Department of Community Services Children's Court of New Wouth Wales & Ors; Re Peter & Ors
JUDGMENT OF:	O'Keefe J

LOWER COURT JURISDICTION :	Children's Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER :	Mag T Lucas

COUNSEL :	Mr G Moore - Plaintiff Mr and Mrs V - In person Mr G Dougherty - Solicitor in person
SOLICITORS:	I. V Knight - Crown Solicitor, sydney - Plaintiff 2nd and 3rd Defendants in person 4th Defendant - in person
CATCHWORDS:	Courts - Practice and procedure - Children's Court - Duty of Children's Court to give reasons - Discretion - Court expert - Authorised Clinician - Oral evidence - Declaration - Order in the nature of mandamus - Costs
LEGISLATION CITED:	Children and Young Persons (Care and Protection) Act 1998 : ss 8, 48, 53, 54, 58, 59, 93, 98, 99, 107, Pt 6 Children's Court Act, 1997 : ss 6, 7(2)(b), 12, 15B, 23 Children's Court Rule 2000 : Pt 8, Cl 33, Cl 36 Evidence Act 1995 (NSW) : s 192(2) Family Law Act 1975 Supreme Court Act 1970 : ss 69, 75 Deserted Wives and Childrens Act, 1991 Equity Act 1901: s 10
CASES CITED:	Ex Parte Powter : Re Powter (1946) 46 SR (NSW) 1 Barker v Barker (1906) 95 LT 549 Carlson v King (1947) 64 WN (NSW) 64 Pettitt v Dunkley (1971) 1 NSWLR 376 Public Sevice Board of NSW v Osmond (1986) 159 CLR 656 Housing Commission of NSW v Tatmar Pastoral Co (1983) NSWLR 378 at 386 Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 Capital and Suburban Properties v Swycher (1976) Ch 319 at 325-326 Mohamed Kunjo s/o Ramalan v Public Prosecutor (1979) AC 135 Ex parte Currie : Re Dempsey (1969) 70 SR 443 Palmer v Clarke (1989) 19 NSWLR 158 Yates v Darling Harbour Authority (1991) 24 NSWLR 186 O'Hare v DPP [2000] NSWSC 430 Stanoevski v The Queen (2001) 202 CLR 115 John Fairfax & Sons Limited v Police Tribunal of New South Wales (1986) 5 NSWLR 465 Re: JRL, ex parte CJL (1986) 161 CLR 343 In the marriage of PW and AJ Hall (1979) 5 FamLR 609 Bacon v Rose (1972) 2 NSWLR 793 Ex parte Cousens Re Blacket (1947) 47 SR 145 Willessee v Willessee (1974) 2 NSWLR 275 Acs v Anderson (1974) 2 NSWLR 482 Connor v sankey (1976) 2 NSWLR 570 The King v War Pensions Entitlement appeal Tribunal; ex parte Bott (1933) 50 CLR 228 Ex parte Hebburn Limited; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 The King v Minister of Health (1939) 1 KB 232 Estate and Trust Agencies (1927) LTD v Singapore Improvement Trust (1937) AC 898 The King v Connell (1944) 69 CLR 407 The King v Board of Education (1910) 2 KB 165 Acuthan v Coates (1986) 6 NSWLR 472 Degmam Pty Limited (in liq) v Wright No 2 (1983) 2 NSWLR 354 Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 Hobartville Stud Pty Limited v Union Insurance Co Limited (1991) 25 NSWLR 358 Northridge v Central Sydney Area Health Service (2000-2001) 50 NSWLR 549 at 570
DECISION:	1(a) The record of the Children's Court be called up and the determination of such Court in respect of the Department's Request to Court for Authorised Clinician to Give Evidence be quashed; 1(b) The Children's Court re-consider the Department's Request to Court for Authorised Clinician to give Evidence in accordance with law as set out in this judgment, giving reasons for the determination made, or to be made, in relation to such request; 2. I declare that the Children's Magistrate fell into error in failing to give reasons for his decision to refuse the Department's Request to Court for Authorised Clinician to Give Evidence by declining to allow the Authorised Clinician to be called to give oral evidence;3. No order as to costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

O’Keefe J

31 July, 2002

11416/02 – DIRECTOR GENERAL, NEW SOUTH WALES DEPARTMENT OF COMMUNITY SERVICES v CHILDRENS COURT OF NEW SOUTH WALES & ORS; RE PETER & ORS

JUDGMENT

INTRODUCTION

1 By summons dated 21 May 2002 the Director-General of the NSW Department of Community Services (the Department or the plaintiff) has proceeded against the Children’s Court of New south Wales (the Children’s Court), Sandra V (the second defendant), John V (the third defendant) and Graham Dougherty (the fourth defendant) seeking:

(a) a declaration that the Department was denied procedural fairness on 8 May 2002 as a result of the Children’s Magistrate having refused to issue a Request to Court for Authorised Clinician to Give Evidence;

(b) an order quashing the decision of such Children’s Magistrate; and

(c) a direction in the nature of mandamus requiring the issue of a Request to Court for Authorised Clinician to Give Evidence directed to a named Authorised Clinician.

2 The second and third defendants are the parents of four children in respect of whom orders have been sought in the Children’s Court. The fourth defendant is a solicitor who was appointed by the Children’s Court to represent the children in the proceedings before it. Before this Court the Children’s Court has filed a submitting appearance. The second, third and fourth defendants have appeared in person.

BACKGROUND

3 The plaintiff is the Department of State charged with the care of children pursuant to the Children and Young Persons (Care and Protection) Act 1998 (the Act). On 18 December 2001 it applied to the Children’s Court at Campbelltown for orders pursuant to s.48(a) of the Act for the removal of two children, P and S, from the premises of their parents, the second and third defendants, in which they were then housed. On 20 December 2001 the plaintiff applied to the same Court for interim orders for the removal and assessment of the other two children of the second and third defendants, namely R and Q.

4 On 21 December 2001 the Children’s Court made an order that all four children be placed in the care of the Department. However, the Department did not press for the children to be removed from the care of the second and third defendants provided that such defendants gave certain undertakings to the Court. These were given and the proceedings were then adjourned until 16 January 2002. On that date, on the application of the Department, orders were made by the Children’s Court under s.53 of the Act that the children be assessed in relation to the emotional and psychological impact on them of the third defendant’s mental condition.

5 The evidence before the Court reveals that the second and third defendants have lived together for almost 20 years. They have been married for 16 of those years and their marriage is described as “strong and stable”. Their relationship is described by both of them as “close and loving”. Neither of the second or third defendants abuses alcohol or takes drugs. The second defendant has defective hearing that resulted from the birth of her second child. The third defendant suffers, and for many years has suffered, from a paranoid personality with some narcissistic features, the essential manifestations of which are said to be pervasive distrust and suspicion of others, without sufficient basis.

6 In accordance with the order of 16 January 2002 an Authorised Clinician carried out an examination on behalf of the Children’s Court Clinic constituted under Pt 8 of the Children’s Court Rule 2000 promulgated in fulfilment of the mandate in s.15B of the Children’s Court Act, 1987. The Authorised Clinician made a detailed report in relation to P, Q, R and S and in the course of so doing set out relevant background information and clinical findings in relation to both the second and third defendants.

7 The report indicates that Q, who is aged 17, “stated categorically that he and his siblings enjoy a close and affectionate relationship with their parents” and that he “feels totally comfortable with his parents and communicates openly with both”. The report continues that Q “considers reports of unstable behaviour on the part of his parents as gross exaggerations or mere misunderstandings with no basis at all” and that “family life is happy and harmonious”.

8 R, who is aged 15, is reported as emphasising “the positive relationship he enjoyed with his parents and siblings” and “expressed no concern for his father’s behaviour”.

9 The interactions between P, who is aged 10, his siblings and parents are assessed as “comfortable and genuine”. The report further states that “there appeared to be no apprehension or reluctance on his part” and that he “seemed to enjoy a close bond and attachment with both parents”.

10 Another child S, who is aged 9, is described in the report as “a happy, appealing and friendly little girl” who “did not appear to be either apprehensive or intimidated by either parent”. Indeed, it is said that “she interacted positively and happily with her parents and her siblings” and that both parents appeared “to be indulging of all their children but more particularly S as she is the youngest and only girl in the family”.

11 The four children are said in the report to “impress as happy, articulate well adjusted and charming youngsters that enjoy a positive and caring relationship with their parents”. The report continues “there is no evidence of apprehension, maladjustment or intimidation in their responses and interactions with each other and the parents”.

12 The third defendant’s paranoid personality is referred to in the report, but is described as “mild” and “neither threatening or psychotic”. His paranoia is reported as not presenting “a danger to either himself or his family” and all four children are described as “happy and relaxed, pre-occupied with their own activities regarding school, friendship and leisure activities” and as “having well considered goals for their future and … able to communicate them freely with both parents”.

13 The conclusion in the report is that the personality of the third defendant and his consequential behaviour “do not appear to have interfered with his ability to parent his children appropriately as evidenced by their comfortable and affectionate interactions with each other”. The final paragraph of the report expresses the Authorised Clinician’s view that the third defendant’s “emotional and mental state of mild paranoid ideation with some narcissistic symptoms, does not have an adverse affect on the children’s emotional or psychological well being. It is felt his condition does not present any danger to his family and all four children appear to be happy, well adjusted youngsters with well defined goals and plans for their future.”

14 The departmental officer who is the responsible case worker was concerned about the mental condition of the third defendant. She has set out a history relating to the third defendant in her affidavit. The history begins in January 1994 with a report that was received concerning the behaviour of the paternal grandfather of the children. This led to an allegation of a domestic dispute between the second and third defendants, as a result of which the second defendant contacted the police. When they arrived the third defendant is alleged to have made threats to them and is said to have been observed splashing petrol around the lounge area. The information in the possession of the department, (presumably hearsay), is that firearms, ammunition and a pair of handcuffs were removed from the premises and the third defendant was later placed on a good behaviour bond for a period of two years. A condition of the bond was that he submit to psychological counselling. Alcohol is said to have played a part in the events at that time.

15 The departmental history relating to the third defendant is then silent for the next seven and a half years, namely until July 2001 when a report was received that the third defendant believed that there were video cameras in the family home and that someone was trying to poison the family through the tank water on the premises they were then occupying. Nothing is recorded that suggests any danger to any of the children as a result of this belief on the part of their father. There does not appear to have been any attempt at verification of this last mentioned complaint. However, it is interesting to note that in the report of the Authorised Clinician there is material from one of the children which suggests that “they had a psycho for a landlord” at the relevant time and which otherwise supports the third defendant’s assertion of persecution by the landlord. Another of the children confirms that he had become ill after the water tanks at the premises had been tampered with and that he required treatment at Goulburn Hospital as a consequence. The second defendant is supportive of her husband’s concerns about the actions of their landlord and states that the landlord’s behaviour resulted in their being forced to move back to Sydney.

16 The next matter adverted to by the departmental officer relates to 8 August 2001 when the Department received a telephone call advising that the second and third defendants had failed to collect two of the children from school. The explanation by the second and third defendants was that they had been to Goulburn to collect the rest of the family’s belongings and were unable to get to the childrens’ school on time. They were also said to be late in picking up the children on 10 August 2001, with the result that the children walked home.

17 Thereafter the matters contained in the departmental file relate to events which demonstrate, in the view taken by the Department, the third defendant’s paranoid personality. These include unspecified events described as “bizarre and frightening” which occurred whilst the family was residing near Goulburn as well as complaints by the third defendant about the inaccuracy of notes taken by the Department during interviews with him. Comment is also made on the fact that the third defendant carried a tape recorder to record his interviews with departmental officers.

18 On 24 August 2001 the departmental officer in question was contacted by a social worker in Liverpool and advised that the third defendant had been scheduled under the Mental Health Act following a suicide attempt but that he had absconded from the hospital. One of the children is said to have then expressed concern about his father’s strange behaviour.

19 On 8 October 2001 it is said that the third defendant became the subject of a domestic apprehended violence order which excluded him from the family home and that following this various drugs were prescribed to deal with his paranoid condition.

20 In November 2001 further information was received by the Department which suggested that the third defendant had acted in disregard of the apprehended violence order (albeit with the consent of the second defendant) and had engaged in self-threatening behaviour.

21 The report prepared by the Authorised Clinician was released by the Children’s Court on 20 March 2002 as a result of which the departmental officer, whose qualifications are not revealed in the evidence, prepared an affidavit commenting on the report of the Authorised Clinician. This raised questions of fact and put in dispute some of the matters adverted to in the Authorised Clinician’s report.

22 On 24 April 2002 the Children’s Court fixed the matter for hearing on 23 May 2002 and directed the Department to file a request for the clinician to give evidence. This was done and on 8 May 2002 the request application was listed for hearing. On that occasion, in addition to the report from the Authorised Clinician, the Children’s Court had a report dated 7 February 2002 from a Dr Luong, which had been prepared at the request and on behalf of the plaintiff. Dr Luong reported that he had seen the third defendant on two occasions, namely 27 September 2001 and 18 October 2001, and that the third defendant had failed to attend three appointments, the last of which had been fixed for 10 January 2002.

23 Dr Luong recorded a history of complaint by the third defendant that he and his family were being poisoned through the water supply at the property on which he was then residing. He also said that he believed “that the Jews were behind the conspiracy to destroy him” and that he was depressed, not sleeping well and at times felt suicidal. The third defendant is reported as having presented on examination “as suspicious and guarded” and the report states that “he wanted to tape the assessment”. He had no hallucinations, but displayed a lack of insight into his illness. The second defendant is said to have given the impression to Dr Luong that she shared her husband’s beliefs.

24 As regards the second appointment the doctor states that the third defendant had attempted to purchase a gun from a stranger in the city, again displayed a lack of insight into his condition and resisted an offer of an injection of a long-acting anti-psychotic drug. The third defendant’s response to this offer was that he wanted a second opinion about his mental condition, but that he would accept the injection if his own private psychiatrist concurred. As far as the second defendant was concerned, the doctor reported that she displayed significant emotional confusion, had taken out a Domestic Apprehended Violence Order, but planned to revoke it and take the third defendant back.

25 Doctor Luong’s diagnosis was that the history and presentation of the third defendant were “consistent with a Delusional Disorder, Paranoid Type”, but he ruled out schizophrenia. The doctor opined that the second defendant tended to distort the truth regarding the extent of her husband’s illness, and “was probably frightened of him”. The facts on which this opinion is based are not expressly stated in the report.

26 The recommendation in Dr Luong’s report is:

“ Delusional Disorder sufferer, especially the Paranoid Type , poses significant danger to others. This is because their capacity to plan, organise and execute remains largely intact. As a result, I strongly recommend an anti-psychotic medication, preferably a long-acting depot injection … I also recommend (the third defendant) to attend regular psychiatric appointments as required by his treating psychiatrist or delegate/s.”

It is perhaps significant that Dr Luong does not recommend that the children the subject of the application should be removed from the care or presence of the third defendant. Nor does he state that their safety, welfare or well being are at risk or are being adversely affected as a result of the mental condition of the third defendant. Be that as it may, there is an apparent divergence between the report of the Authorised Clinician and that of Dr Luong.

27 In the course of the hearing of the application for the calling of the Authorised Clinician to give oral evidence, a submission was put to the Children’s Court that because the Authorised Clinician’s report conflicted with the material relied on by the Department, “it will be necessary to have both expert witnesses available at the hearing so that they can be cross-examined about their evidence”.

28 The evidence before this Court from the departmental officer in her affidavit of 20 May 2002 is that, without inviting the fourth defendant to make any submissions and without hearing the plaintiff further, the Children’s Magistrate said:

“ Dr Luong’s report has been tendered to the court. The clinician’s report has also been tendered to the court. She will not be attending .”

29 After the departmental officer had sworn her affidavit, the transcript of the proceedings before the Children’s Court on 8 May 2002 became available. The decision given by the Children’s Magistrate is relevantly recorded as follows:

“I note that the report from the psychiatrist, Dr Luong, has been tendered. I also note that the children’s clinic report has been tendered. The application by the Department, further clarification, cross examination on the issue in relation to psychological impact of the parent’s behaviour on the children. It is my view that the matter is fully set out having viewed the Children’s Court plea report, the clinician will not attend.”

30 The plaintiff contends that in refusing the application to cross-examine the Authorised Clinician the Children’s Magistrate exercised his discretion in a way which could well have a fundamental effect on the outcome of the proceedings, did so without affording to the plaintiff or the fourth defendant an adequate opportunity to present their cases and failed to give reasons for the exercise of his discretion. It is further contended that the foregoing circumstances constitute or involve an error of law which attracts the jurisdiction of this Court.

APPLICABLE LAW

A. Principles

31 Whether or not reasons need to be given for a particular decision will depend upon the tribunal giving the decision, the nature of the decision and the circumstances in which it is given. The usual rule is that matters are conducted in our courts either in public or, in some instances, at least in the presence of those who might be affected by the outcome of the proceedings. Furthermore, parties or persons who may be affected by the outcome of proceedings are usually entitled to know why it is that the particular court has come to the decision in question. This has a number of benefits. They include enabling parties and those affected by orders to know whether or not there are any rights of appeal open to them in respect of the particular decision. In addition, the giving of reasons for a particular decision operates as a control on the exercise of the power by the court giving the decision and thus helps to ensure that the decision is within the Court’s jurisdiction. It also operates as a restriction on the exercise of arbitrary power, which in turn enhances public confidence in the judicial system.

32 A given statute may not require the giving of reasons and even where reasons for the ultimate outcome are required, reasons may not be required in respect of intermediate procedural decisions.

33 In Ex parte Powter: Re: Powter (1946) 46 SR (NSW) 1 Jordan CJ in considering an appeal from a magistrate exercising jurisdiction under the Deserted Wives and Children Act 1901, determined that the purpose of the statute was to “effect a policy deemed necessary in the public interest, namely, the maintenance of destitute or deserted wives and children” and said that where the magistrate had not given reasons for his order:

“This is wrong. It has been pointed out time and again that orders by magistrates made under legislation such as this ‘are of the greatest moment, and involve life long consequence. They are not like the ordinary kind of orders in other petty cases that come before them everyday … Magistrates should realise … that this class of business is not mere trivial work, and they should deal with these cases with a due sense of the responsibility which … the far reaching consequence of the orders that they make entail’ : Barker v Barker (1906) 95 LT 549 ” (supra at 4-5)

and

“… it is the duty of the magistrate .. to give the reasons for his decision … elaborate judgments are not required, but the reasons which lead the magistrate to make his order must be explicably stated.” (supra at 5)

34 The principle enunciated in relation to decisions by magistrates was applied to the District Court in Carlson v King (1947) 64 WN (NSW) 64. In that case, reliance was placed not only on the statutory provisions under which that court operated, but also on the general law relating to decisions by courts. Jordan CJ said that the duty to give reasons:

“…is incumbent not only upon Magistrates … and District Courts, but also upon this court, from which an appeal lies to the High Court and the Privy Council” (supra at 66)

35 He pointed out that even where a note has been made of the addresses to the court it was not a proper compliance with the Court’s duty to give reasons for the court merely to state that it did not agree with the submissions on behalf of one of the parties.

“It has long been established that it is a duty of a court of first instance, from which an appeal lies to a higher court, to make or cause to be made a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate court if there is to be an appeal. This includes … the decision arrived at (and) also the reasons for arriving at the decision.”(supra at 66)

36 In Pettitt v Dunkley (1971) 1 NSWLR 376 Asprey JA said that the failure by a judicial officer at first instance to give reasons makes it impossible for an appellate court to give effect to the rights of parties that may be secured by statute. He stated the principle that where the mere recording of the result may leave an appellate tribunal in doubt as to the basis on which the matter has been resolved:

“then, in the absence of some strong compelling reason, the case is such that the judge’s findings … and his reasons are essential for the purpose of enabling a proper understanding of the basis upon which (the result) has been reached … the judge has a duty, as part of the exercise of his judicial office to state … the reasons for his decision adequately …” (supra at 382)

37 Moffitt JA said that the mere failure to give reasons did not in every case establish error, but where a party’s right to appeal on a point of law may be frustrated by a failure on the part of the judicial officer to give reasons, it is the duty of such officer, unless there are exceptional circumstances “to give some indication of the basis of his decision.” (supra at 390)

and:

“If it can be established that a judge failed … to give any reasons for his decision in circumstances where there was a judicial duty express or otherwise to do so, then … I think he has erred in law. The wrongful admission or rejection of evidence or a failure to conduct the trial in accordance with judicial processes … constitutes an error of law such as can vitiate the judgment even in cases where it does not appear whether or not the admission would have effected the result.” (supra at 388)

38 Although the decisions in Ex parte Powter Re: Powter (supra); Carlson v King (supra) and Pettit v Dunkley (supra) all refer to the need to give reasons when making orders of the kind in question in each of those cases and from which an appeal lies to other courts, in none of such cases does the court limit the basis on which the duty to give reasons rests to the fact that failure to give reasons may frustrate appeal rights.

39 In Public Service Board of NSW v Osmond (1986) 159 CLR 656 Gibbs CJ stressed that the general obligation to give reasons did not mean that a judicial officer should give his or her reasons in every case and said that there is no inflexible rule of universal application that reasons should be given for all judicial decisions. However, he went on to state that it is correct to say, as Mahoney JA did in Housing Commission of NSW v Tatmar Pastoral Co (1983) NSWLR 378 at 386, that the requirement to give reasons is an incident of the judicial process, subject to the qualification that it is a normal, but not universal, incident.

40 Deane J dealt with the history of the law relating to the giving of reasons. He said:

“There was a time when the ordinary prescript of prudence for an administrator who was anxious to avoid litigation was to decline to give reasons for the discretionary exercise of a statutory power in a manner which would adversely affect the property or rights of another … that approach is no longer, if it ever was, acceptable as a general prescript to be observed by all administrative decisionmakers. That is a good thing since the exercise of a decisionmaking power in a way which adversely affects others is less likely to be, or to appear to be, arbitrary if the decisionmaker formulates and provides reasons for his decision.” (at 675)

41 He then discussed the relationship between statutory provisions which did not require the giving of reasons on the one hand and the rules of natural justice on the other and said that the recent statutory developments:

“… are conducive to an environment within which the courts should be less reluctant than they would have been in times past to discern in statutory provisions a legislative intent that the particular decisionmaker should be under a duty to give reasons or to accept that special circumstances might arise in which contemporary standards of natural justice or procedural fair play demand that an administrative decisionmaker provide reasons for a decision to a person whose property, rights or legitimate expectations are adversely affected by it. Where such circumstances exist statutory provisions conferring the relevant decisionmaking power should in the absence of a clear intent to the contrary, be construed so as to impose upon the decisionmaker an implied statutory duty to provide such reasons.” (at 676)

42 What Deane J says to be the case in relation to the maker of an administrative decision is the case a fortiori in relation to a court.

43 The subject of reasons being given for a decision in judicial proceedings was revisited in Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247. Kirby P, in the course of his decision, pointed out that the requirement that there be reasons given does not require primary judges to make:

“a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process that leads to the … conclusion. But the judicial obligation to give reasons and not to frustrate the legislative facility of appeal on questions of law, at least obliges a judge to state generally and briefly the grounds that have led him or her to the conclusions reached …” (supra at 259)

44 Mahoney JA referred to the decision of Gibbs CJ in Public Service Board of NSW v Osmond (supra) and said that three things may be taken from what was by Gibbs CJ:

“First, the reasons given must be sufficient, where there is a right of appeal, to allow that right to be exercised. Secondly, the giving of reasons is not limited to cases where there is a right of appeal: there are reasons in the nature of the judicial process which require that reasons be given as an incident of the decision in question. And, thirdly, the giving of reasons is a normal but not a universal incident of the judicial process: there are some cases, or kinds of cases, where they need not be given.” (supra at 269)

45 Thus, in England it has been said that reasons need not be given in certain procedural applications Capital and Suburban Properties v Swycher (1976) Ch 319 at 325-326 per Buckley LJ. A like approach has been adopted as a matter of practice in New South Wales. This was recognised by McHugh JA in Soulemezis v Dudley (Holdings) Pty Limited (supra) in which he said:

“Justice is a multi-faceted concept. In determining whether justice was done and seen to be done other interests beside the giving of reasons, have to be considered. The limited nature of judicial resources and the cost to litigants and the general public in requiring reasons must weighed. For example, many questions concerning the admissibility of evidence may require nothing more than a ruling: In New South Wales common law judges have long held that they are not obliged to hear argument on the admissibility of every question of evidence let alone give reasons. It all depends on the importance of the point involved and its likely effect on the outcome of a case.” (supra at 279)

46 In the same case Mahoney JA (at 270-271) adopted and applied what had been said by the Privy Council in Mohamed Kunjo s/o Ramalan v Public Prosecutor (1979) AC 135, namely that:

“Reasons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available in respect of it.” (at 142)

47 The cases of Ex parte Currie: Re Dempsey (1969) 70 SR 443 (Licensing Court); Palmer v Clarke (1989) 19 NSWLR 158 (District Court); Yates Property v Darling Harbour Authority (1991) 24 NSWLR 186 (Land and Environment Court); O’Hare v DPP [2000] NSWSC 430, unreported 22 May 2000 (Local Court), apply the same or cognate principles to those referred to above.

48 Recently, the High Court has indicated that where a discretion to admit or reject evidence is exercised pursuant to the principles set out in the Evidence Act 1995 (NSW) it is essential for the primary court to advert to the basis on which the discretion is exercised. (Stanoevski v The Queen (2001) 202 CLR 115) In that case it was held that where the trial judge did not advert to the provisions of s 192 of the Evidence Act 1995 (NSW) and matters of the kind expressed in s 192(2) were of relevance to the case, the failure to indicate that such matters had been taken into account constituted an error of law.

49 From the foregoing consideration of the decided cases, I conclude that the duty of a judicial officer or tribunal to give reasons for his, her or its decision is not restricted to those cases in which there is a right of appeal conferred in respect of the decision in question. There is a broader principle on which the duty rests, namely, that justice must not only be done but must seen to be done. Whether such principle requires the giving of reasons in a particular instance, and if so the nature and extent of such reasons, will vary according to the statutory provisions, if any, under which the decision is made, the nature of the decision, its likely effect on the outcome of the proceedings (if it not be the outcome itself) and the practice adopted in the particular jurisdiction. There is no formula which will indicate the extent of reasons required from the particular judicial officer in relation to the particular decision made, but the duty to give reasons is a normal incident of the judicial process. Furthermore, in the case of a statutory tribunal, the proper approach to the construction of the statute under which a particular function, including discretion, is exercised will be to so construe it as to imply a statutory duty to provide reasons, unless there is a clear intent to the contrary in the statute. Where reasons are required it will ordinarily be sufficient if the judicial officer apprises the parties of the broad outline and constituent facts on which he or she has acted.

B. Statutory Provisions

50 In the light of the foregoing it is necessary to consider the statutory provisions, under which the Children’s Magistrate who constituted the Childrens Court made his decision.

51 The Children and Young Persons (Care and Protection) Act 1998 (the Act) like the Deserted Wives and Childrens Act 1901, was enacted in the public interest to ensure the protection of, inter alios, children in particular need. The objects of the Act are to provide, inter alia, that children and young persons receive such care as is necessary for their safety, welfare and well being, taking into account the rights, powers and duties of their parents or other persons responsible for them (s 8).

52 The proceedings in which the decision in question in the present matter was made had been instituted pursuant to Chapter 5 Part 2 (ss 60-91) of the Act. Under that Part it is competent to the Department to seek an order with respect to the care and protection of a child or young person in circumstances in which such an order is for the safety, welfare and well being of the child or young person. Such proceedings are to be held before a Children’s Court. That court is required to determine whether, on the balance of probabilities, the child in question is in need of care and protection. It is empowered to make any of a range of orders extending from interim care orders, to orders placing the child under the supervision of the Director General, committing parental responsibility for the child to the Minister and determining the place of residence of the child. The orders made are therefore of significance. They impact on the natural parents of the child and in relation to the child him or herself. They are of no less significance than orders of the kind referred to in Ex parte Powter: Re Powter (supra).

53 The Children’s Court is an inferior court of record established under the Children’s Court Act 1987. It is a specialist court. It is composed of such Children’s Magistrates as the Chief Magistrate may from time to time appoint (s 6). A person appointed as a Children’s Magistrate must have the qualifications specified in s 7(2)(b) of the Children’s Court Act 1987 and may exercise such jurisdiction as may be conferred or imposed on the Children’s Court under any Act (s 12). However, as an inferior court established by statute it has no powers, jurisdictions or authorities other than those conferred by the relevant statute. John Fairfax & Sons Limited v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476 per McHugh JA.

54 The Children’s Court Act 1987 provides for the setting up of a Children’s Court Clinic which has the functions, inter alia, of making clinical assessments of children and submitting its reports to various courts including the Children’s Court (s 15B). The Children’s Court Act 1987 also empowers the Governor to make rules for the practice and procedure of the Court (s 23).

55 Proceedings in the Children’s Court under the Act are not to be conducted in an adversarial manner and are to be conducted with as little formality, legal technicality and form as the circumstances of the case permit (s 93(1) and (2)). The Children’s Court is not bound by the rules of evidence, unless the court otherwise determines (s 93(3)) and any child the subject of an application, as well as each person having parental responsibility for such child, is entitled to appear either in person or with legal representation (s 98). Furthermore, the court is empowered to appoint a guardian or legal representative for a child (ss 99, 100). In addition, the court is empowered to make an order for the physical, psychological, psychiatric or other examination of a child or for the assessment of a child (s 53). The court is also empowered to appoint a person to assess the capacity of a person who has parental responsibility for a relevant child (s 54). Where an order for the assessment of a child, or a person who has parental responsibility in respect of a child, is made the Children’s Court is required to appoint the Children’s Court Clinic to prepare and submit the assessment report (s 58) and where such a report is submitted it is “taken to be a report to the Children’s Court rather than evidence tendered by a party” (s 59).

56 The procedure of the Children’s Court in relation to matters under the Act is governed by Chapter 6 of the Act (ss.92 – 109). Section 107, which is headed “Examination and Cross-examination of Witnesses” makes provision with respect to the extent of examination and cross-examination of witnesses. It provides:

“(1) A Children’s Magistrate may examine and cross-examine a witness in any proceedings to such extent as the Children’s Magistrate thinks proper for the purpose of illiciting information relevant to the exercise of the Children’s Court powers.”

The same section mandates forbidding the asking of a question that is offensive, scandalous, abusive or humiliating (s.107(2)) and an examination of a witness that it regards as oppressive, repetitive or hectoring (s.107(3)).

57 Although less adversarial, technical and formal than the procedure in many other courts, the procedure before the Children’s Court is nonetheless recognisable to those who are conversant with the operations of courts in our system of justice. The fact that it is a court with a recognised procedure and which is empowered to make binding orders which affect the rights of individuals carries with it a requirement that it observe the appropriate rules of natural justice. One of these is that the right of a party to be heard is respected and that those who appear before the court should know why it is that the court has determined a particular matter in a particular way and why it is that the court has acted in a particular way. The basis for decisions which affect or may affect the rights of individuals should be made known. Reasons perform this function.

58 The powers conferred by s.107 involve the exercise of a discretion and judgment by the court in accordance with the terms of the statute. Whilst the Children’s Magistrate may examine and cross-examine and may permit examination and cross-examination of a witness, a decision has to be made in that regard. The exercise of that function must be in accordance with the dictates of the rules of natural justice. There is no express provision in the Children’s Court Act that requires the court to give reasons for the formation of its judgment and the consequent exercise of power under s.107. However, there is no express provision absolving a Children’s Magistrate from giving reasons for a decision made in the exercise of the power conferred by s.107 either. Considering the Act as a whole, I am satisfied that there is no clear intent in the Children’s Court Act or the Act that negates the normal incident of the exercise of judicial power, namely the giving of reasons. The objectives of the Act and the significant effect which orders made under it may have on individuals against or in favour of whom orders are made support such a conclusion.

59 The Children’s Court Rule 2000 has been made under the Children’s Court Act 1987. Part 8 of that Rule deals with the Children’s Court Clinic. It provides for the appointment by the Attorney General of persons “considered by the Attorney General to be suitable to prepare and submit assessment reports” (cl 33). An assessment report prepared by the Children’s Court Clinic must be filed with the court and parties may make application to the court for access to it to be granted to them (cl 36). However, no provision is made in the rule for any special weight to be given to any assessment report notwithstanding that it has been prepared pursuant to the rule. Such reports are evidence, but do not have any special weight given to them, even though they are not evidence tendered by any of the parties to a proceeding.

60 There is other legislation under which the equivalent of assessment reports may be called for by the court and used in proceedings as evidence bespoken by the court, rather than as evidence from the parties. One such piece of legislation is the Family Court Act 1975 under which family court counsellors may be appointed to furnish a report to the court. Judicial decisions in relation to the reports of such counsellors support the conclusion expressed in paragraph 59.

61 In Re: JRL, ex parte CJL (1986) 161 CLR 343 the High Court considered the situation of reports submitted by family court counsellors. Under the Family Law Act 1975 the Family Court is required to take into account the contents of a report prepared by a family court counsellor for the purposes of determining a substantive issue in a case before it. In respect of such a report Mason J said that:

“... a court counsellor is in a position analogous to that of an expert who makes a report. It may be that in some cases ... the trial judge should, in the exercise of his discretion allow the report to be placed before the court as a court document, treating the court counsellor as a witness called by the court so as to permit each party to cross examine the counsellor.” (supra at 354)

62 In the marriage of PW and AJ Hall (1979) 5 FamLR 609 the Full Court of the Family Court reviewed matters relevant to the exercise of a discretion in relation to the report of a court appointed counsellor. In summary those matters were:

“(a) There is no magic in a family report. A judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the judge is abdicating his responsibilities ...
(b) Family reports are meant to be, and almost invariably are, valuable and relevant material to assist a judge in forming his ultimate conclusions ...
(c) Whilst the counsellor’s views will normally have weight with the court because of his expertise and experience, the counsellor does not usually have the same opportunity as the trial judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross examination, and make findings of fact on evidence before the court which might not have been available to the counsellor.
(d) ... the counsellor’s assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong; or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross examination, or in the face of evidence from other witnesses, prove to be of a different character from that which the counsellor has accepted.
(e) ...
(f) ... a counsellor, therefore, need not be disturbed if a recommendation is not accepted because the court has had the advantage of much more material and much more examination in depth than was available to the counsellor.
(g) It follows that in some cases it may be desirable to question counsellors about the bases of their recommendations. Indeed, there will clearly be some cases where a practitioner would be failing in his duty to a client if he did not seek to test the recommendations of the counsellor in the light of instructions given to that practitioner. To cross examine a counsellor is to do no more than test an expert witness in the same way as any other expert witness may be tested or challenged ...
(h) Where there is proper reason for cross examination, the court will be assisted and, we have no doubt, so will the counsellors. No expert should cavil at any questioning of his role or the foundation of his opinions. We consider that it is always a valuable opportunity for the counsellor himself to examine and test his own methods under critical examination ...
(i) Finally, and most importantly, and as a matter of public policy, no party should leave the court with a belief that justice has not been done because an opportunity to test part of the evidence has been denied ... Where a welfare report is delivered which contains either factual matters or matters which a party desires to challenge but is not permitted to do so that party may be pardoned for feeling that justice has not seen to be done ... If the contents of such a report are not open to challenge by cross examination the court would leave itself open to the criticism of conducting a trial ‘by report’ rather than on the whole of the evidence.” (supra at 615-616)

63 The Children’s Court has developed a practice whereby a party seeking to adduce oral evidence from a person appointed by the Attorney General to the Children’s Court Clinic and who has prepared an assessment report is required to file a “Request to Court for Authorised Clinician to give Evidence”. It would seem that this procedure has evolved in order to determine in advance of the final hearing whether particular oral evidence is to be called. This will no doubt be of convenience to the Authorised Clinician and will assist the Children’s Court in making an assessment of the likely length of the particular matter. Where such a request is made the Children’s Court is called upon to exercise the function and discretion conferred upon it by Chapter 6 of the Act and in particular s.107.

64 The exercise of a discretion to require or allow oral evidence from a person who has made and reported on an assessment in relation to a child the subject of proceedings or in relation to a person who has parental responsibility in respect of such a child, must be exercised in accordance with and for the purposes of achieving the objects of the Act and in such a way as to ensure that justice is done and is seen to be done. In some cases this may involve the exercise of the discretion in such a way as not to permit oral evidence. For example, if there is no dispute of fact in relation to the matters on which the assessment report is founded, then there would be no need for oral evidence or for cross examination in relation to the report. That situation would be, as it has been in the past in relation to the admission or rejection of evidence, sufficient not to accede to the request. And, if the request for oral evidence is obviously no more than an attempt to delay proceedings or to delve into matters not in dispute, or is clearly a mere “fishing expedition,” then the mere rejection of the application may be sufficient.

65 If, however, there is a genuine dispute, founded on appropriate evidence or instructions either in relation to the factual substrate on which the Authorised Clinician’s Report is founded, or a genuine dispute, founded on appropriate evidence, as to the conclusion reached by the Authorised Clinician, then the situation is otherwise.

66 In such a case whilst the Children’s Magistrate may in the circumstances of the particular case, still decline to accede to the application, it is an element of the proper exercise of judicial function for the parties to be apprised of the reasons for the decision, the more so since the acceptance of the report of the Authorised Clinician, untested, may have an important, even fundamental, effect on the outcome of the proceedings.

C. Analysis

In the present case there is a dispute between the Department on the one hand and the parents on the other as to the factual situations which are said to be manifestations of the acknowledged mental condition of the father of the four children the subject of the proceedings in the Children’s Court. The Authorised Clinician’s Report contains material which, if accepted as factually correct, would provide a solid foundation for her conclusions as to the absence of threat to the safety, welfare and well being of the relevant children. If, on the other hand, the factual situation is as set out in the affidavit of the departmental case officer, then the conclusion reached in the medical report prepared by the medical practitioner retained by the Department may more readily (but not necessarily) be accepted by the Children’s Magistrate.

67 The factual material in, or on which, each of the reports is based is different. If the true state of facts is as asserted by the Department, then the Authorised Clinician’s conclusions may differ from those expressed in her report. They may not. However, it is not apparent that there is a way in which the Children’s Court can determine this on the material before it. The comparison of one report with the other does not resolve the factual dispute. More is needed to avoid a suggestion that the ultimate determination of the matter is by report, rather than on the totality of the evidence. More is needed in order to resolve the conflict. Oral evidence is one way in which the conflict could be resolved and a decision reached.

68 In these circumstances, I am of opinion that it is appropriate that reasons conforming with the principles set out above,should be stated by the Children’s Magistrate for his conclusion that oral evidence, including cross examination, from the Authorised Clinician should not be permitted.

69 In setting out such reasons the Children’s Magistrate should state briefly why it is that the discretion has been or is to be exercised in a particular way. This will not require lengthy or elaborate reasons. It will be sufficient for the purposes of the Act that the reasons that are given indicate that the purposes of the Act and the factors particular to the exercise of the discretion in the instant case have been considered and weighed.

D. Conclusion

70 I am of opinion that there was an obligation in the circumstances of the case for the Children’s Magistrate to hear the fourth defendant and to inform the parties of the reasons for his conclusion that he would not require the Authorised Clinician to attend to give oral evidence and be cross-examined. In failing to do so, the Children’s Magistrate fell into error.

RELIEF

A. Declaration

71 The Department has sought a declaration. Section 75 of the Supreme Court Act 1970 is the relevant source of power. It provides :

“No proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby and the Court may make binding declarations of right whether any consequential relief is or could be claimed or not.”

72 The power conferred by s.75 (and by its predecessor, s.10 of the Equity Act 1901, which was in similar terms) is well demonstrated in Bacon v Rose (1972) 2 NSWLR 793. Street CJ in Eq considered the power of the court to make declarations in relation to committal proceedings in cases in which the prerogative writs of prohibition and certiorari are not available, as was determined to be the situation in ex parte Cousens; Re Blacket (1947) 47 SR 145 (per Jordan CJ). Street CJ in Eq held that:

"There is no basis upon which it can be successfully contended that the declaration presently sought lies beyond the jurisdiction of the Court. The important question is to determine whether, as a matter of discretion, the plaintiff should be entitled to seek an exercise of the declaratory jurisdiction in circumstances such as the present." (supra at 796)

and:

"It does not follow from what I have stated that declaratory relief is available as a means of appeal, either before, during, or after committal proceedings. I am concerned only with an assertion by the plaintiff that the proceedings have been instituted in the face of an express statutory pre-condition. If this claim be made out by the plaintiff then there is every reason, in the pursuit of the due and orderly administration of law, for this court to assent to its process being invoked to expose the disregard of the statutory pre-condition, and to declare the absence of justification for the plaintiff being exposed to committal proceedings". (supra at 798)

73 In Willessee v Willessee (1974) 2 NSWLR 275, Holland J intervened by way of declaration in committal proceedings in respect of a charge of assault. This was done on a basis similar to that enunciated in Bacon v Rose (supra).

74 In Acs v Anderson (1974) 2 NSWLR 482 a like course was said to be open as a matter of jurisdiction, but relief was refused in the exercise of the Court's discretion:

75 These cases emphasise that there is jurisdiction to intervene by way of declaratory relief even in committal proceedings, but that in the exercise of the Court's discretion it will be exercised only in an appropriate case. This was confirmed in Connor v Sankey (1976) 2 NSWLR 570. Street CJ said:

"The declaratory jurisdiction of this court is not hedged about with the restrictions nor clouded by the complications that attach to the remedy by way of prohibition." (at 592)

and

"If the plaintiffs are able to establish that the information and summonses allege offences not known to the law, I am of the view...that the court has jurisdiction to grant declaratory relief accordingly and that it should exercise such jurisdiction. Similarly I am of the view that if the jurisdiction of the Justice of the Peace and the presiding Magistrate was not duly and properly invoked, then once again this court both has and should exercise its declaratory jurisdiction in favour of the plaintiffs." (at 594)

76 Moffitt P, while accepting the wide jurisdiction conferred on the court to intervene by way of declaration in the proceedings of an inferior tribunal took a more restrictive view as to the circumstances in which it should be exercised. He said:

"It would not, in my view, be a proper exercise of (the) admittedly wide power for this court to intervene in proceedings before another tribunal by declaring that such tribunal should do that which this court has no power to order, or which, in the exercise of a judicial discretion, it will decline to order." (at 622)

and:

"The reason it will decline to do so is because exclusive jurisdiction upon the matter is conferred by statute upon the tribunal in question. In this setting, there is no basis for the exercise of a judicial discretion to grant declaratory relief to usurp the authority or jurisdiction of the tribunal in question by declaring what order it should make. It would be a negative and somewhat futile exercise of power by a Superior Court to decline to make an effective order to ensure what should be done, yet declare what should be done, in the hope it will be done. The mere statement of these considerations demonstrate that, if the prerogative relief sought by the plaintiff will not be given, the declaratory orders sought by them should not be made." (at 623)

77 The basis of the conclusion reached by Moffitt P was supported by the judgment of Reynolds JA who, like Moffitt P, adhered to the statement of the law by Jordan CJ in Ex parte Cousens; Re Blacket (supra). Thus the majority of the court, whilst recognising the wide ambit of the jurisdiction of the court to make declarations, indicated that in the field of the former prerogative writs there should be caution in its exercise.

78 The present case is not a committal proceeding nor is it analogous to a committal proceeding and there is undoubted jurisdiction to make an appropriate declaration . However, since the remedy is discretionary and the field is that of the former prerogative writs, care needs to be taken as to the circumstances in which the jurisdiction is exercised. The Court will not exercise its jurisdiction to intervene by way of declaration unless there are persuasive reasons for doing so, and will not do so in such a way as to usurp the functions and discretions of the court in respect of which the supervisory jurisdiction of the Supreme Court is being exercised.

B. Mandamus

79 The Department has sought an order in the nature of mandamus requiring the issue by the Children’s Magistrate of a Request to the Authorised Clinician to give oral evidence. The relief sought appears to be based on a misunderstanding of the writ of mandamus and orders in the nature of a mandamus.

80 The writ of mandamus was abolished in New South Wales in 1970. However, s.69 of the Supreme Court Act 1970 confers on the Court jurisdiction to grant relief in the nature of mandamus by ordering any person to fulfil any duty in the fulfilment of which the person seeking the order is personally interested. Whilst this section enables the Court to issue orders in the nature of mandamus, it does not empower the Court to substitute its own decision for that of an inferior court in which the power to make the relevant decision is exclusively vested. It does however empower this court in the exercise of its supervisory jurisdiction to order a judicial officer who has purported to exercise a power, function or discretion to do so in accordance with law, in cases in which the purported exercise has not been in accordance with law.

81 The principles applicable to orders in the nature of mandamus have been definitively stated in The King v War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228. Relevantly, Rich, Dixon and McTiernan JJ said:

“ A writ of mandamus does not issue except to command the fulfilment of some duty of a public nature which remains unperformed. If the person under the duty professes to perform it, but what he actually does amounts in law to no performance because he has misconceived his duty, or in the course of attempting to discharge it, has failed to comply with some requirement essential to its valid or effectual performance, he may be commanded by the writ to exercise his function according to law de novo at any rate if a sufficient demand or request to do so has been made upon him.” (at 242)

82 Ex parte Hebburn Limited; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 is to a like effect. Jordan CJ in dealing with an application for mandamus to require a magistrate to hear and determine an appeal by the applicant against the assessment of certain land for a local lighting rate under the Local Government Act 1919, said:

"...the mere fact that a tribunal has made a mistake of law, even as to the proper construction of a statute, does not necessarily constitute a constructive failure to exercise jurisdiction: The King v Minister of Health (1939) 1 KB 232 at 245-6. But there are mistakes and mistakes; and if a mistake of law as to the proper construction of a statute investing a tribunal with jurisdiction leads it to misunderstand the nature of the jurisdiction which it is to exercise, and to apply "a wrong and inadmissible test": Estate and Trust Agencies (1927) LTD v Singapore Improvement Trust (1937) AC 898 at 917; or to "misconceive its duty," or "not to apply itself to the question which the law prescribes": The King v War Pensions Entitlement Appeal Tribunal (supra); or :to misunderstand the nature of the opinion which it is to form" ( The King v Connell (1944) 69 CLR 407 at 432), in giving a decision in exercise of its jurisdiction or authority, a decision so given will be regarded as being in purported and not in real exercise of jurisdiction, leaving the jurisdiction in law constructively unexercised, and the tribunal liable to the issue of a prerogative writ of mandamus to hear and determine the matter according to law ( The King v Board of Education (1910) 2 KB 165" (supra at 420).

83 The powers, functions and discretions referred to in s.107 of the Act are conferred on the Children’s Court. It is within the exclusive competence of the Children’s Magistrate who constitutes the particular court to exercise the powers and discretions and perform the functions conferred by that section. They must be performed and exercised in accordance with law.

84 I am conscious that the decision of the Children’s Magistrate was ex tempore. As a consequence the approach to be taken by the Court should not be “nit-picking”. Regard must be had to the substance of what was said and done (Acuthan v Coates (1986) 6 NSWLR 472 per Kirby P). However, even on such an approach, what was said and done by the Children’s Magistrate did not amount to a compliance with the duty to state reasons which was cast upon him by the Act and the rules of natural justice that apply to proceedings in the Children’s Court. The failure to hear the fourth defendant was another departure from the duty cast upon the Children’s Magistrate by both the statute under which he was acting and the rules of natural justice applicable to a hearing of the kind he was conducting. However, the fourth defendant has sought no relief. He has merely responded to the Department’s Summons.

85 There has been only a purported exercise of function because what was done and said by the Children’s Magistrate was not in accordance with law. Notwithstanding this, it is not for this Court to order the Children’s Magistrate in the present case to exercise his power and discretion so as to reach a particular result. It is open to the Court to order such judicial officer to exercise his power and discretion in accordance with law. Provided he does so, he will have fulfilled the duty cast upon him by the statute and the rules of natural justice applicable under the statute.

86 Accordingly, I decline to make the order sought by the Department in paragraph (c) of the Summons (as to which see paragraph 1 above of this judgment). To do so would not be in accordance with the proper approach to orders in the nature of mandamus. However, it is appropriate to order that the proceedings be lifted up from the Children’s Court, that the decision of the Children’s Magistrate be quashed, that the matter be referred back to the Children’s Magistrate to exercise his function and make a decision under Chapter 6 of the Act in accordance with the law as set out in this judgment. In addition, there should be an appropriate declaration to complement the order in the nature of mandamus. Such declaration should be in the following form:

Declare that the Children’s Magistrate fell into error in failing to give reasons for his decision to refuse the Department’s Request to Court for Authorised Clinician to Give Evidence by declining to allow the Authorised Clinician to be called to give oral evidence.

COSTS

87 Although an award of costs is discretionary, the discretion must be exercised judicially, that is to say, on proper grounds. The usual rule is that a successful party is entitled to its costs and the Court will not lightly depart from the usual rule in awarding costs. However, the usual rule may be departed from if there is a some special situation or if the successful party has acted in such a way as to disentitle itself to costs. (Degmam Pty Limited (in liq) v Wright No 2 (1983) 2 NSWLR 354 per Holland J; Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 542 per Kirby P; Hobartville Stud Pty Limited v Union Insurance Co Limited (1991) 25 NSWLR 358 per Giles J, Northridge v Central Sydney Area Health Service (2000-2001) 50 NSWLR 549 at 570).

88 In the present case the decision which has been challenged was made by a judicial officer who is part of the justice system of New South Wales. He is part of the machinery of government, albeit independent of the executive in the exercise of his judicial functions. The Department is also part of the machinery of government of the State. It performs one of the many functions of government. Unlike the judicial officer it is not independent of the executive. The Children’s Court has filed a submitting appearance. The fourth defendant, who was appointed by the Children’s Court to protect the interests of the four children the subject of the Department’s application, has responded in person to the Summons issued by the Department. The second and third defendants have done likewise. They did not request the attendance at the Children’s Court of the Authorised Clinician. That was done by the Department. The actions which have been examined by this Court are those of the Children’s Magistrate in relation to the Department’s request as a litigant. The real dispute has been between two arms of government. The parents and the fourth defendant have been part of the process only for technical reasons. In those circumstances I am of opinion that it would not be just to make an order for costs against the second, third or fourth defendants. As the Children’s Court has submitted to any order that the Court may make, other than an order as to costs, it would be inappropriate to make an order for costs against the Children’s Court. Accordingly, I am of opinion that the appropriate outcome is that there be no order made.

ORDERS

I order that:

89 1(a) The record of the Children’s Court be called up and the determination of such Court in respect of the Department’s Request to Court for Authorised Clinician to Give Evidence be quashed.

1(b) The Children’s Court re-consider the Department’s Request to Court for Authorised Clinician to give Evidence in accordance with law as set out in this judgment, giving reasons for the determination made, or to be made, in relation to such request.

2. I declare that the Children’s Magistrate fell into error in failing to give reasons for his decision to refuse the Department’s Request to Court for Authorised Clinician to Give Evidence by declining to allow the Authorised Clinician to be called to give oral evidence.

3. No order as to costs.
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Last Modified: 08/02/2002