DT v Chief Executive of the Department for Child Protection - [2022] SASCA 28

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
DT v CHIEF EXECUTIVE OF THE DEPARTMENT FOR CHILD PROTECTION
[2022] SASCA 28
Judgment of the Court of Appeal (ex tempore)
(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice David)
22 March 2022
FAMILY LAW AND CHILD WELFARE - CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION - CHILDREN IN NEED OF PROTECTION - GUARDIANSHIP OF CHILDREN
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - FURTHER APPEAL TO COURT OF APPEAL
COURTS AND JUDGES - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - REASONABLE APPREHENSION OF BIAS GENERALLY
By two Notices of Appeal dated 24 December 2021, the applicant sought to appeal against two decisions made by a single Judge of this Court. The first appeal concerned the Judge’s dismissal of the applicant’s appeal against a decision made by a Magistrate of the Youth Court to place the applicant’s daughter under the guardianship of the Chief Executive of the Department for Child Protection pursuant to s 53(1)(g) of the Children and Young People (Safety) Act 2017 (SA). The second appeal concerned an order made by the Judge striking out the applicant’s application for custody of the child pursuant to s 6 of the Guardianship of Infants Act 1940 (SA).
The applicant advanced three primary contentions. First, that the Magistrate was affected by actual and ostensible bias, and the Judge erred in failing to find bias of any kind. Second, that the Magistrate’s direction to the applicant to provide a list of the questions he proposed to ask a witness was biased and contrary to the best interests of the child, and the Judge erred in failing to find otherwise. Third, that the Judge did not “facilitate” the object of “just” contained in r 1.5 of the Uniform Civil Rules 2020 (SA).
Held (per the Court):
1.The application for leave to appeal the Judge’s dismissal of the appeal from the decision of the Magistrate is dismissed. The Judge was correct to reject all the contentions made concerning actual and ostensible bias, as well as the Magistrate’s direction. The Judge’s approach was fair and just.
2.The appeal against the Judge’s order striking out the application made pursuant to the Guardianship of Infants Act 1940 (SA) is dismissed.

Children and Young People (Safety) Act 2017 (SA) s 53; Evidence Act 1929 (SA) s 69A; Guardianship of Infants Act 1940 (SA) s 6; Supreme Court Act 1935 (SA) s 50; Uniform Civil Rules 2020 (SA) rr 1.5, 212.5, 213, 214; Youth Court Act 1993 (SA) ss 3, 22, referred to.
DT v Chief Executive of the Department for Child Protection [2021] SASC 138; DT v Chief Executive of the Department for Child Protection [2021] SASCA 64; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126; M, K v Chief Executive of the Department for Child Protection [2021] SASCA 27; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; Municipio de Mariana and others v BHP Group plc & anor [2022] 1 WLR 919; R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256; Rankine v State of South Australia [2022] SASCA 18, considered.

DT v CHIEF EXECUTIVE OF THE DEPARTMENT FOR CHILD PROTECTION
[2022] SASCA 28
Court of Appeal – Civil: Livesey P, Doyle and David JJA
THE COURT:
Introduction

The Court has before it today four matters.
There are two appeals against decisions made by a single Judge in DT v Chief Executive of the Department for Child Protection on 3 December 2021.[1] Associated with these is an application by the respondent to strike-out each Notice of Appeal pursuant to r 212.5(2)(b) of the Uniform Civil Rules 2020 (SA) (the UCR).
[1] DT v Chief Executive of the Department for Child Protection [2021] SASC 138 (Parker J).
The fourth matter concerns the applicant’s application for leave to amend his Notice of Appeal.
The two appeals and the two applications
The first appeal concerns a decision made by a Magistrate of the Youth Court to place the applicant’s daughter under the guardianship of the Chief Executive of the Department for Child Protection (the Chief Executive) pursuant to s 53(1)(g) of the Children and Young People (Safety) Act2017 (SA) (the Act). The Judge dismissed the applicant’s appeal from the Magistrate’s decision. The applicant requires leave to appeal the Judge’s dismissal of the appeal from the Magistrate.[2]
[2] Pursuant to s 50(4)(a)(ii) of the Supreme Court Act 1935 (SA) and r 213.1(1)(b) of the Uniform Civil Rules 2020 (SA).
The second appeal concerns an order by the Judge striking out an application by the applicant for custody of the child made under s 6 of the Guardianship of Infants Act 1940 (SA) (the 1940 Act). The respondent says that leave is not required to pursue this appeal. We will return to that.
The respondent’s application to strike-out the appeal is based on the contention that the appeal grounds are inadequately particularised. In response, the applicant applies for leave to amend. He has put forward two proposed amended notices of appeal. The most recent was received yesterday.
Leave to appeal
The requirement to obtain leave must reflect that this is a second appeal and that it is ordinarily necessary to demonstrate that there is good reason to doubt the correctness of the impugned decision, and that the issues raised involve matters of general principle or importance.
Ultimately, the Court will act in the interests of justice.[3]
[3] M, K v Chief Executive of the Department for Child Protection [2021] SASCA 27, [5]-[7] (Doyle and Livesey (as he was) JJA); Rankine v State of South Australia [2022] SASCA 18, [2]-[4] (Livesey P, Lovell and Doyle JJA).
Although the respondent suggests that leave to appeal is not required in respect of the decision concerning the 1940 Act, the Judge’s decision appears to be interlocutory in nature.[4]
[4] See r 213.1(1)(a) of the Uniform Civil Rules 2020 (SA).
The appeal in respect of the 1940 Act is concerned with the ruling made by the Judge that the application under that Act effectively lacked utility or was otherwise inappropriate. His Honour gave two reasons. First, the only purpose of the application under the 1940 Act was to provide the applicant with a remedy in the event his appeal succeeded. The second reason, probably obiter, was that even if the appeal succeeded, the Youth Court was the appropriate forum to decide issues concerning the welfare of children in accordance with the terms of the Act, and so the 1940 Act could not be relied on.
In these circumstances, it is doubtful whether the legal, as distinct from practical, effect of the ruling affected the parties’ legal rights and obligations. Nonetheless, as the respondent has not taken the point, we are prepared to assume, without deciding, that leave is not required.
The earlier appeal and the progress of these appeals
It is necessary to briefly say something about the progress of this matter to this hearing.
This matter has already been before this Court. Before making the decisions which are the subject of the appeals before us today, the Judge refused to make a declaration as to whom the child “belongs” and he also refused to remove the legal practitioner appointed to separately represent the interests of the child.[5] This Court refused leave to appeal those decisions.[6]
[5] These matters were briefly reviewed by the Judge, DT v Chief Executive of the Department for Child Protection [2021] SASC 138, [15]-[18] (Parker J).
[6] DT v Chief Executive of the Department for Child Protection [2021] SASCA 64 (Doyle and Livesey JJA).
After the appeal from the Magistrate’s decision was heard and determined by the Judge, the applicant commenced his appeals on 24 December 2021. He did so by means of two actions, although the same grounds of appeal were pleaded in both.[7] At that stage, the seven grounds of appeal were as follows:
[7] Before consolidation the actions were: CIV-21-14130 and CIV-21-14131.
1.Justice Parker erred and distorted facts of evidence failing to see the bias, apprehended bias of Magistrate Davis.
2.Justice Parker did not facilitate the just objective of Rule 1.5.
3.Justice Parker erred that the Children Guardianship Act 1940 can not be pursued in the Supreme Court.
4.Justice Parker erred in this concept that the word “belong” in relation to human relationships, refers to slavery.
5.Justice Parker failed to see the dysfunction of the Youth Court (in my experience) and the reason that I requested the matter not to be referred back to the Youth Court but to be dealt in the Supreme Court.
6.Justice Parker by striking out the Originating Application CIV-21-005331, by not making the parenting declaration, that the Appellant is the father of [ET] before dismissing the application, could have prevented the unqualifying part of the presented argument by the Respondent and the Child Representative.
7.Justice Parker’s objective not to do justice, not to act in the best interest of the child [ET] but to support the Magistrate Davis decision, to indirectly sentence [ET] (the child) deprivation of her father’s love, care, safety, protection, physical, spiritual, mental and emotional development, and excel in all areas reaching a disciplined and upright life, until she reaches 18 years of age. Neither [ET] nor her father, did something wrong to justify this sentence, this deprivation.
On 19 January 2022, the respondent applied to strike-out each Notice of Appeal pursuant to r 212.5(2)(b) of the UCR, on the basis that the grounds were inadequately particularised and failed to articulate why the Judge’s decision was wrong. The respondent contended that the appeals, in any event, lacked merit and could not succeed. In response, the applicant filed an application supported by affidavit evidence, seeking an extension of time “of at least five (5) months, with the option of a further extension to comply with the rules of the Court”.
When this matter was called over on 21 January 2022, the child was joined as the second respondent as required by r 214.2(2) and the applicant was ordered to provide amended grounds of appeal together with any further evidence on which he wished to rely by 15 February 2022. The applicant was concerned to file evidence which demonstrated what he contended was bias by the Magistrate.
In addition, as two separate appeal actions appeared unnecessary the actions were consolidated.
When the applicant filed amended grounds of appeal on 15 February 2022, appeal Grounds 3 and 4 were abandoned but many others were added, apparently by way of particularisation of the existing grounds.
The following day, the applicant filed an application seeking a “separation” of the actions, as well as another extension of time to complete the amended grounds of appeal and to provide documents concerning the new evidence on which he wished to rely. The applicant’s supporting affidavit referred to his concerns about whether consolidation might cause him some detriment and he said that there were “unforeseen and urgent circumstances” which prevented him completing the amendment of his grounds of appeal.
When the matter was called over again on 18 February 2022, the applicant explained that he was occupied by an urgent injunction application. In separate Supreme Court proceedings, he sought to prevent the Chief Executive proceeding with a planned COVID-19 vaccination of his daughter. He required more time to complete his amended grounds.
The applicant was told that he had commenced his injunction application knowing that he already had the appeals on foot and that it would be necessary to determine the appeals. The applicant was warned that if he needed more time, his affidavit evidence would need to explain in detail why that was so and using phrases such as “unforeseen circumstances have intervened or words to that effect won’t do it”. The applicant was warned that if he wished to provide further grounds of appeal, he would need to justify why the Court should consider those grounds given that they would be provided out of time.
On 21 March 2022, the applicant filed further amended appeal grounds. In an accompanying affidavit, the applicant reiterated that he had been unable to complete his grounds of appeal because he was occupied with “unforeseeable urgent circumstances” being the proposed vaccination of his daughter. He explained that he had initiated Supreme Court proceedings seeking an injunction and work on that “set me back more than a month”.
The determination of the application for leave to appeal
We are prepared to proceed on the latest appeal grounds provided by the applicant. We do so with some reservations because they are difficult to follow and, in many respects, repetitive. Nonetheless the focus of the appeal appears to have narrowed to three broad topics.
First, appeal Grounds 1 to 1.12 inclusive concern contentions that the Magistrate was affected by actual and ostensible bias and that the Judge failed to find bias of any kind.
Second, appeal Grounds 1.13 to 1.16 inclusive complain about the Magistrate’s direction that the applicant provide a list of the questions that he proposed to ask a witness. It is said that this revealed bias and was contrary to the best interests of the child. It is said that the Judge erred in failing to find otherwise.
Finally, it is said that the Judge “did not facilitate the object of Rule 1.5 ‘just’”.
Whilst not mentioned in the latest grounds, we assume that the appeal against the dismissal of the application under the 1940 Act is still pressed.
Ultimately, it seems clear enough that the amended appeal grounds are intended to raise the same matters that were pressed before the Judge. The latest grounds effectively represent further particulars if not submissions on the topics they address.[8]
[8] The appeal grounds are problematic, having been drawn by an unrepresented party, cf Municipio de Mariana and others v BHP Group plc & anor [2022] 1 WLR 919 (Sir Geoffrey Vos MR, Underhill, Carr LJJ): “Grounds of appeal are intended to be short, succinct documents which identify as briefly as possible the respects in which it is said that the court below erred. In addition: (i) The grounds of appeal are an essential analytical tool for the court, to enable it to identify the issues which it is being asked to decide: they are not a vehicle for advocacy, which is the role of the skeleton argument …”.
We see no reason to doubt the decision made by the Judge on these matters. We start with the bias allegations. The Judge accepted that an allegation of actual bias had to be distinctly identified, fully particularised and clearly proved.[9] On the question of ostensible bias, the Judge took the relevant statement of principle from Ebner v Official Trustee in Bankruptcy:[10]
… a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial.
(footnotes omitted).
[9] Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, [69] (Gleeson CJ and Gummow J), [127] (Kirby J).
[10] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
As the Judge pointed out, this statement incorporated the well-known observation made by Lord Hewart CJ in the Sussex Justices case.[11]
[11] R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256, 259.
It is not necessary to address in any detail the comprehensive reasons given by the Judge on bias. It was necessary for the Judge to address these contentions in the context of a long trial which continued, at the applicant’s request, during periods when the applicant did not attend the trial. One of the applicant’s concerns was whether the applicant and the mother should have been prevented from bringing their mobile telephones into the courtroom. Today he has emphasised that the ruling should not have applied to him because only the mother was the “wrongdoer” who had misused her phone. The Judge rejected all of the contentions made concerning actual and ostensible bias.[12] We think he was right to do so.
[12] See DT v Chief Executive of the Department for Child Protection [2021] SASC 138, [60] (Parker J).
Insofar as the applicant complained about the direction that he provide the Magistrate with a list of all questions that he wished to ask a witness, the Judge doubted whether any order had been made within the meaning of ss 22 and 3 of the Youth Court Act 1993 (SA).[13] The Judge concluded that the direction was an incidental ruling which gave rise to no judgment or order capable of being appealed. Given the particular circumstances of the trial, the Judge rejected the contention that the direction disclosed bias.[14] Again, we think that he was right to do so.
[13] Citing Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126, 127 (King CJ).
[14]
Finally, insofar as the applicant asserts that the Judge did not facilitate the object of “Rule 1.5” in that his decision,[15] it would seem, was not “just”, there is no substance in that assertion. The reasons disclose a keen appreciation of the arguments raised and a painstaking analysis of them. His Honour’s approach was both fair and just.
[15] See Uniform Civil Rules 2020 (SA) r 1.5.
In these circumstances, leave to appeal is refused.
The appeal
On the assumption that leave is not required to challenge the order made with respect to the 1940 Act, we are not persuaded that any error was made by the Judge. In the circumstances outlined, there was no utility in that application once the appeal was dismissed. Whilst it may have been more appropriate to dismiss the application, nothing turns on that.
Other matters
In the circumstances, we have not found it necessary to rule on the respondent’s strike-out applications.
Conclusion
The orders of the Court are:
1.The applicant is given leave to file and rely on the amended appeal grounds dated 21 March 2022.
2.The application for leave to appeal the dismissal of the appeal from the decision of the Magistrate is dismissed.
3.The appeal against the Judge’s order striking out the application made pursuant to the Guardianship of Infants Act 1940 (SA) is dismissed.
4. Pursuant to s 69A of the Evidence Act 1929 (SA) neither the name of the child nor the parents may be published, nor may any other material be published which tends to identify the child.

See DT v Chief Executive of the Department for Child Protection [2021] SASC 138, [68]-[69]

(Parker J).