DT v Chief Executive of the Department for Child Protection - [2022] SASCA 59

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
DT v CHIEF EXECUTIVE OF THE DEPARTMENT FOR CHILD PROTECTION
[2022] SASCA 59
Judgment of the Court of Appeal (ex tempore)
(The Honourable President Livesey and the Honourable Justice Bleby)
14 June 2022
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES
EQUITY - EQUITABLE REMEDIES - INJUNCTIONS - INTERLOCUTORY INJUNCTIONS - INJUNCTIONS TO PRESERVE STATUS QUO OR PROPERTY PENDING DETERMINATION OF RIGHTS
FAMILY LAW AND CHILD WELFARE - CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION - CHILDREN IN NEED OF PROTECTION - GUARDIANSHIP OF CHILDREN - MEDICAL TREATMENT
ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
The applicant seeks to prevent his daughter, in the guardianship of the Chief Executive of the Department for Child Protection, from being vaccinated against COVID-19.
By Notice of Appeal filed on 10 June 2022, the applicant seeks leave to appeal against a decision made by the President of the South Australian Civil and Administrative Tribunal (the Tribunal) affirming the Chief Executive’s original decision to vaccinate the child. In broad terms, the applicant contends that he was denied procedural fairness before the Tribunal President and requires more time. He otherwise maintains that vaccination is harmful and damaging.
On the same date, the applicant filed an urgent interlocutory application for an injunction that his child not be vaccinated against COVID-19 pending the hearing of the appeal.
Held (by the Court) refusing leave to appeal and dismissing the application:
1.The applicant has failed to identify any error by the President. There is no reason to question the decision made by the Tribunal on 6 June 2022.

2. No proper basis for an injunction has been made out by the applicant.
South Australian Civil and Administrative Tribunal Act 2013 (SA) ss 34, 37, 71, 73; Uniform Civil Rules 2020 (SA) r 212.5; Children and Young People (Safety) Act 2017 (SA) s 158, referred to.
DT v Chief Executive of the Department for Child Protection [2022] SASCA 28, considered.

DT v CHIEF EXECUTIVE OF THE DEPARTMENT FOR CHILD PROTECTION
[2022] SASCA 59
Court of Appeal: Civil – Application: Livesey P and Bleby JA
THE COURT:
Introduction

By Notice of Appeal filed on 10 June 2022, the applicant challenges a decision made by President Hughes in the South Australian Civil and Administrative Tribunal (the Tribunal) on 6 June 2022. It will be necessary to return to precisely what President Hughes decided.
The applicant has also filed an application for an injunction that his child not be vaccinated against COVID-19. According to the applicant’s affidavit filed at the same time as the appeal and the application, the application for an injunction is urgent because there is a booking that the child be vaccinated on or after 14 June 2022.
The appeal to this Court – leave to appeal
By s 71 of the South Australian Civil and Administrative Tribunal Act (the SACAT Act) an appeal against a decision by a Presidential member of the Tribunal lies to the Court of Appeal. By s 71(2), an appeal is only by leave of the Supreme Court. By s 71(5), the Supreme Court may on an appeal make any interim, ancillary or consequential order that the Court considers appropriate.
Indeed, by s 73(2) the Supreme Court may make an order staying the operation of a decision until the proceedings are finally decided. For this purpose, the Court may act on its own initiative. By r 212.5(1) of the Uniform Civil Rules 2020 (SA), where jurisdiction to hear an appeal is vested in a Court of Appeal, a single judge may make interlocutory and ancillary orders.
As is well recognised, when considering whether to grant leave to appeal, this Court acts in the interests of justice and by reference to three, inter-related questions. They are:
(1)whether the decision is attended with sufficient doubt to warrant its reconsideration on appeal;
(2)whether the decision raises an issue of principle or general importance; and
(3)whether allowing the decision to stand would work a substantial injustice to the applicant.
Previous hearings
This is not the first time this matter has been before this Court. After the applicant’s child was placed under the guardianship of the Chief Executive of the Department for Child Protection until she turns 18, an appeal was dismissed by a judge of Supreme Court in December 2021. In March 2022, leave to appeal against that decision was refused.[1]
[1] DT v Chief Executive of the Department for Child Protection [2022] SASCA 28.
In February 2022, the applicant sought to invoke the parens patriae jurisdiction of the Supreme Court and sought an injunction preventing his child from being vaccinated. The Department cancelled booked vaccinations pending the hearing of that application. It applied for summary dismissal of those proceedings.
On 11 March 2022, the applicant’s action and application for immediate injunctive relief were dismissed. This was on the basis that the applicant had available to him a statutory right of review and, on the material then before the Court, it had not been demonstrated that vaccination posed any immediate or serious risk to the health of the child that would warrant an injunction notwithstanding the availability of review.[2]
[2] DT v Chief Executive of the Department for Child Protection [2022] SASC 24.
At that stage, the Chief Executive undertook not to vaccinate the child until the first hearing of any statutory review proceeding. The Chief Executive conducted an internal review and by letter dated 17 March 2022 advised the applicant that the original decision to vaccinate the child was upheld.
The review proceedings
The applicant commenced review proceedings in the Tribunal pursuant to s 158 of the Children and Young People (Safety) Act 2017 (the Act) and s 34 of the SACAT Act. The applicant sought an order that the decision to vaccinate be stayed. The applicant claimed that the decision by the Chief Executive was wrong because:
This ignorance is unacceptable and not in the best interests of the child. The powers that they are claiming that they have work in contrary to the best interest of the child exposing the child to harmful, irreparable, irreversible harm and damage without having significant data to support that the child will not sustain medium and life-long damage [sic]…
The Tribunal ordered a stay pending the hearing of the review proceedings. The President of the Tribunal directed that the parties file written submissions and informed the parties that she would issue a decision without further oral hearing, unless she considered an oral hearing was necessary.
The applicant argued before the President that there were deficiencies in the process adopted by the Department, particularly in connection with the conduct of the internal review of the original decision. The applicant was concerned that he had been denied an opportunity to contribute to or comment on the proposed decision. The applicant complained generally about a denial of procedural fairness. For the purposes of evaluating the applicant’s written submissions, the President took into account various documents filed by the applicant, including material written by various medical practitioners and a ‘You Tube’ video depicting the views of a medical practitioner.
The President proceeded by reference to s 158 of the Act and s 34 of the SACAT Act. Her task was to evaluate the original decision, being the decision that the child be vaccinated. She held that the decision affirming the original decision was not a reviewable decision (contrary to the submissions made by the applicant before her). The President conducted a re-hearing. After considering and giving appropriate weight to the original decision-maker’s decision, she was required to determine whether to affirm, vary or set aside the original decision in accord with s 37 of the SACAT Act.
Although the President addressed the merits of the application for review, she did so noting that the application was made out of time and the Tribunal would not generally grant any extension unless special circumstances had been demonstrated, together with a lack of disadvantage to the other party, see s 158(5) of the Act. The President found that no special circumstances had been established and so she declined to grant an extension of time. Nonetheless, she proceeded to explain why she would have affirmed the decision under review.
It is not necessary to go into detail regarding every aspect of the President’s decision-making in this respect. For present purposes, the following outline is sufficient. The President started with the proposition that the Chief Executive, as guardian, was conferred functions and powers which enabled her to make all the ordinary decisions made by a parent or guardian concerning the care of a child. The President found that the Chief Executive was not obliged to consult the applicant, nor justify her decision. Whilst in some situations the Chief Executive might determine that it is appropriate to provide a biological parent with an opportunity to be heard, she did not regard the decision to vaccinate as enlivening any obligation because the decision had no effect on the applicant’s interests.
Ultimately, the President had regard to various published material concerning the immunisation of children, together with the South Australian government website and the Australian government website concerning the views of the Australian Technical Advisory Group on immunisation. Having done so, the President understood the applicant’s case to be that the Tribunal should make a finding that the Department’s decision to vaccinate, in accord with its own policy based on South Australian and Australian government advice, was wrong.
By contrast, a review of the materials provided by the applicant did “not create a persuasive case” against vaccination. The President accepted the criticism of these materials as “lacking sufficient proof of their provenance and their status in the scientific community” and they did not “attempt to balance the potential benefits and detriments of … vaccination”. That there may be a range of views in the community about the benefits of vaccination did not demonstrate that the Chief Executive’s decision, based on the advice of state and Commonwealth government scientists, was wrong.
The President concluded that the applicant failed to establish that the original decision was not, and is not, correct or preferable and so she affirmed it.
The formal orders of the Tribunal were as follows:
1.The application for review is dismissed.
2.The original decision is affirmed.
3.The effect of this order is stayed for seven days from 7 June 2022.
The President granted the stay because, to do otherwise, would render any appeal inutile.
The grounds of appeal to this Court
The applicant’s grounds of appeal are as follows:
1.The grounds of this Appeal are incomplete due to insufficient time, the Appellant is a lay person, English is not his first language and requires his brother’s assistance to correct expressions, to correct grammar so the Appellant can present his arguments. The Appellant seeks an extension of time to complete grounds of Appeal, to adduce further factual evidential material and to present argument so justice is implemented.
2.The President of the SACAT denied the Appellant procedural fairness / natural justice.
3.On two (2) occasions proceeded with the hearings despite the fact that the Appellant produced medical certificates that he was caring for his brother from life threatening, medical condition that had been hospitalised in RAH. As a result the Appellant had insufficient time to prepare for the case and present further factual evidential material to support the Appellant’s argument.
4.The Appellant requested witnesses that made affidavit, author(s) of reports, and decision maker(s) to come to be cross-examined, these requests have been denied.
5.Unreliable, incorrect and false documents presented by the Respondent, which have been accepted without any investigation toward the truth of the content.
6.The Appellant requested extra time to prepare and file his submissions and it has been denied.
7.The Respondent failed to investigate the harmful and damaging affects the of the Pfizer Corona Virus Covid-19 mRNA vaccine has in the body.
8.The Respondent failed to present the composition of the Pfizer mRNA vaccine and the irreversible and the irreparable damage is causing to the body.
9.The Respondent failed to produce data of the effect of the Pfizer and Modern mRNA vaccines, indicative that the treatment is in the experimental stage and children should not exploited or exposed to harmful conditions but protected from harm.
10.The Pfizer and Moderna Corona Virus Covid-19 mRNA vaccines do not offer immunity from the Corona Virus Covid-19 and its variants.
11.The vaccine enters in to areas of the body that it should not enter.
12.The vaccines undermine the immune system of the individual and can develop auto immune attacks as it enters the nucleus of the cell and alters the DNA of the individual.
13.The High Court of Chancery in England was vested with the parens patriae jurisdiction which the Supreme Court is the only Court in the State that has the inherent protection (parens patriae) jurisdiction.
14.The Supreme Court as a superior Court can hear and determine matters of common law, United Nations treaties and other International treaties that Australia is a member and signatory to these treaties.
The applicant’s contentions
In broad terms, the applicant seeks more time and says that the failure to give him more time amounted to a denial of procedural fairness. In addition, the applicant says that he was denied the opportunity to cross-examine witnesses and the Tribunal acted on unreliable, incorrect and false documents which were “accepted without any investigation toward the truth of the content”. Otherwise, the applicant maintains that vaccination is both harmful and damaging.
Before this Court, the applicant maintained that he required more time to present his arguments properly. He opposed any hearing apart from a hearing of his injunction. He did so notwithstanding that these issues have been ventilated by him in various fora since February of this year.
It is not appropriate to grant the applicant any further time. The applicant has not properly explained various delays since February. The vaccination of his child has been deferred pending the various legal challenges mounted by the applicant.
As the application for leave to appeal can be heard and determined without further delay, there is no need to consider separately whether to grant the injunction sought. However, if the injunction alone was considered, whether to grant it would turn, at least in part, on whether the applicant had identified any arguable case of error. As the applicant has not identified any arguable error in the approach of the President, and as the balance of convenience is against the grant of injunctive relief, no proper basis for an injunction has been made out.
On the question of error, although generalised complaints about procedural fairness are made, the applicant has not, subject to one matter, identified any particular error by the President in connection with her analysis of the Chief Executive’s original decision, or of the internal review undertaken in relation to that decision. In truth, the applicant is simply contending for a different decision without acknowledging that no legal or other error has been made in connection with the original decision.
The extension of time to file the review
The one qualification to this concerns the subject of an extension of time to file the review application. Prior to the hearing of the present application on 14 June 2022, the applicant had not attempted to demonstrate why he should have been granted an extension of time to commence his review application. The review application was not formally received until the applicant paid the requisite fee, which did not occur until 19 April 2022.
The applicant submitted before this Court that he had filed the review application the day after he had received notice of the result of the internal review by the Chief Executive dated 17 March 2022. He had attempted to pay the requisite filing fee by cash and had been told cash was not accepted. He received an invoice from the Tribunal on 19 April 2022, after the 28 days for filing a review application had expired. He submitted that in circumstances where President Hughes had not permitted the filing of a Reply to the written submissions of the Respondent on the review application, which submissions had taken issue with the delay, he had been denied an opportunity to give this explanation.
In light of the unsatisfactory evidentiary foundation for this submission, the Court determined to give the applicant an opportunity to file an affidavit in support and the respondent an opportunity to answer, and granted a three-day adjournment on the respondent’s undertaking not to have the child vaccinated before the adjourned hearing. Each party filed an affidavit on 16 June 2022. The applicant’s affidavit exhibits an invoice from the Tribunal dated 19 April 2022 and a bank statement showing an electronic transfer of the required amount to the Tribunal on the same date.
The Respondent filed an affidavit of Alexander John Falcinella, the solicitor with the conduct of the matter on behalf of the respondent. That affidavit reveals the following chronology of events:
·On 8 March 2022, this Court granted summary judgment in favour of the respondent on the applicant’s application for injunctive relief invoking the parens patriae jurisdiction of the Court. As identified above, during that proceeding, the respondent gave an undertaking not to vaccinate the applicant’s child until the first hearing of any review application.
·On 17 March 2022, as already noted, the respondent notified the applicant by letter of the outcome of the internal review and the decision to vaccinate the child. The letter advised that the applicant had 28 days to lodge an application for review with the Tribunal, and that unless he did so within 14 days, the respondent may seek to be excused from the undertaking.
·On 6 April 2022, Mr Falcinella telephoned the Tribunal registry and was informed that the applicant had lodged an application and applied for a fee waiver but had not provided evidence to support his eligibility. The registry advised that it would give the applicant a little longer to do so, following which it would otherwise issue an invoice.
·On 7 April 2022, following a further inquiry, the Tribunal advised Mr Falcinella that it would be closing the file as the applicant had been provided sufficient time.
·On 8 April 2022, Mr Falcinella wrote to the applicant, attaching the correspondence with the Tribunal, and advising that unless the applicant commenced an urgent review of the decision by close of business on 12 April 2022, the Chief Executive may apply to be released from the undertaking without further recourse.
·On 12 April 2022, Mr Falcinella spoke with the applicant by telephone. The applicant advised that he would attend upon the Tribunal the next day to pay for the application, as the fee waiver application had not been accepted.
·On 13 April 2022, the applicant advised Mr Falcinella by telephone that he had received an invoice, and that he would pay it that day or the next.
·On 19 April 2022, the respondent ascertained that the applicant had not paid the fee. On the same day, the Crown Solicitor’s Office wrote to the chambers of Livesey P seeking liberty to apply with respect to the undertaking and requesting an urgent listing.
·The matter was listed for mention on 21 April 2022 at 9:00am. On 20 April 2022, the applicant advised the Crown Solicitor’s Office that he had paid the fee on 19 April 2022. The Tribunal registry confirmed the payment and listed the application for directions on 28 April 2022. The Crown Solicitor’s Office advised the chambers of Livesey P of this. The Supreme Court hearing was vacated.

It is apparent from this chronology that the applicant was aware of his obligation to pay the filing fee or apply for a waiver. By 13 April 2022, that is, the day before the 28-day period was due to expire, he had received an invoice and expressed an intention to pay the fee forthwith. There was no apparent bar to his doing so. He only paid the fee when the respondent sought to exercise its liberty to apply in order to be released from the undertaking.
In these circumstances, the applicant has not demonstrated that he has lost an opportunity to give an explanation for the delay in paying the requisite fee. It would have been appropriate for him to have given and substantiated any explanation at the outset of commencing the review application, in any event. Even if it could be said that it was only the respondent’s written submissions, to which he was not given permission to reply, that put him on notice of the need for an explanation, he has not shown he had an explanation. To give relief on account of the asserted denial of natural justice, the existence of which we are not in any event persuaded is reasonably arguable, would be futile.[3]
[3] Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145.
Conclusions
In all of these circumstances, there is no reason to question the decision made by the Tribunal. Leave to appeal the President’s decision dated 6 June 2022 is refused.
The application for an injunction is dismissed.