DT v Chief Executive of the Department for Child Protection (No 2) - [2022] SASCA 55

Supreme Court of South Australia
(Court of Appeal: Civil)
DT v CHIEF EXECUTIVE OF THE DEPARTMENT FOR CHILD PROTECTION (No 2)
[2022] SASCA 55
Judgment of the Honourable President Livesey (ex tempore)
14 June 2022
COURTS AND JUDGES - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - GENERALLY
The applicant filed an application for an order that a Judge of the Court of Appeal disqualify himself from hearing and determining the appeal, or any application for leave to appeal, and an associated injunction concerning a decision by President Hughes regarding a decision made by the Department for Child Protection that his child be vaccinated.
The applicant contended that a fair-minded lay observer might reasonably apprehend the Judge might not bring an impartial mind to the case for reasons including that the Judge: previously dismissed an application brought by the applicant, which is currently subject to appeal, listed the injunction application before two appeal judges and has a personal interest in his proceedings and the vaccination status of the applicant’s daughter.
Held (Livesey P) dismissing the application that he disqualify himself from sitting:
1.The matters raised by the applicant do not give rise to any apprehension of bias by reason of pre-judgment or otherwise.

Supreme Court Act 1935 (SA) ss 9B, 19C; Uniform Civil Rules 2020 (SA) r 212.4, referred to.
Contract Mining Services Pty Ltd v Adelaide Brighton Cement Ltd [2020] SASC 69; DT v Chief Executive of the Department for Child Protection [2022] SASC 24; DT v Chief Executive of the Department for Child Protection [2022] SASCA 28; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Re JRL; Ex parte CJL (1986) 161 CLR 342, 352, considered.

DT v CHIEF EXECUTIVE OF THE DEPARTMENT FOR CHILD PROTECTION (No 2)
[2022] SASCA 55
Court of Appeal – Civil: Application
LIVESEY P:
Introduction

This is an application dated 14 June 2022 made by the applicant, seeking an order that I “recuse” myself from hearing and determining the appeal, or any application for leave to appeal, and an associated injunction concerning a decision by President Hughes regarding a decision made by the Department for Child Protection that his child be vaccinated.
It is neither necessary nor appropriate to go into detail about her Honour’s decisions or the challenge now made to them by the applicant.
The application for disqualification
The applicant’s affidavit dated 14 June 2022 appears to identify five matters which are said to support the application for disqualification on the grounds of ostensible bias.
The first matter concerns a decision I made dismissing an application filed by the applicant in February 2022 in the parens patriae jurisdiction seeking an order that the child not be vaccinated. On 8 March 2022, I declined to make an order in the parens patriae jurisdiction of the Supreme Court to prevent the applicant’s daughter from being vaccinated against COVID-19 because statutory review process were available to the applicant in the South Australian Civil and Administrative Tribunal and the applicant had failed to identify any reasonable basis for prosecuting or making his application in this Court.
The applicant says that he has appealed that decision.
The second matter is that the applicant has made repeated requests for my rulings concerning the March decision and other decisions which have not been supplied. I have received various letters from the applicant requesting that the rulings made on 8 March 2022 at 3:25pm and 3:51pm and 22 March 2022 at 3:31pm be released to him. I understand these letters were also sent to the Chief Justice.
The applicant’s concern is incorrect and inaccurate. My associate and the Deputy Registrar have explained to the applicant that these rulings were settled and published as judgments, which have been provided to the applicant and are available on the CourtSA portal and published online. These judgments are DT v Chief Executive of the Department for Child Protection [2022] SASC 24 and DT v Chief Executive of the Department for Child Protection [2022] SASCA 28. Insofar as I ruled against the admissibility of a video, no reasons were separately given.
The third matter is that the applicant complains that I previously indicated action CIV-21-14130 was listed for a directions hearing but instead, without prior notice to the applicant, the matter was called on before the Court of Appeal on 22 March 2022 at 2.15 pm for determination of the appeal.
That view of what occurred is incorrect. On 18 February 2022, the applicant’s matter was called over before me. I told the applicant: “I’m going to list your application for permission to appeal and the department’s application, which is effectively to dismiss, for hearing on the afternoon of 22 March at 2.15”. No further correspondence was exchanged between my Chambers and the applicant. The hearing proceeded on 22 March 2022.
The fourth matter is that this case was allocated to a single judge by the Registry even though the application for an injunction is connected with an appeal which must be heard by the Court of Appeal. When this was ascertained, I made arrangements for the matter to be heard by the Court of Appeal. The applicant says that I listed the matter before me and another judge because I have a personal interest in all of the applicant’s proceedings and the vaccination status of the applicant’s daughter. I can assure the applicant that I have no such interest.
The February matter was allocated to me and I dealt with it on the merits. An appeal from that decision will be addressed on its merits.
As for the listing of the appeal and the injunction this afternoon, as President of the Court of Appeal, I am responsible, subject to the Chief Justice's directions, for the administration of the Court of Appeal, see s 9B of the Supreme Court Act 1935 (SA) (the Act). The bench of two was convened today pursuant to s 19C of the Act and r 212.4(c) of the Uniform Civil Rules 2020 (SA). The allocation of judges is determined by reference to the workloads and demands required of the permanent members of the Court of Appeal.
Fifth and finally the applicant is concerned that he has not been given as much time as he seeks to prepare his various arguments. In fact, the applicant has had a number of opportunities to mount his various arguments since February of this year.
An apprehension of bias?
In his supporting affidavit the applicant, correctly, relies upon Ebner v Official Trustee in Bankruptcy as follows:[1]
Where, in the absence of any suggestion of actual basis, a question arises as to the independence or impartiality of a judge … the governing principle is that, subject to qualifications relating to waiver … or necessity … 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)
[1] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
In addition, I would emphasise the following further passage from that decision:[2]
Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
[2] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [19] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
It is necessary to articulate the “logical connection” between the matter the subject of concern and “the feared deviation from the course of deciding the case on its merits”.[3] As was said in in Re JRL, in many cases it will not be sufficient that there is merely a concern that the case might be decided adversely to a party.[4]
[3] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [8] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
[4] Re JRL; Ex parte CJL (1986) 161 CLR 342, 352 (Mason J).
The fact that I previously made a decision adverse to the applicant on issues which are not precisely the same as those that arise today, and the applicant has appealed that decision, does not give rise to any apprehension of bias.[5]
[5] Contract Mining Services Pty Ltd v Adelaide Brighton Cement Ltd [2020] SASC 69.
That I have listed this matter before two judges of the Court of Appeal when it was previously listed before a single judge of the General Division does not likewise give rise to any apprehension of bias. The other complaints are inaccurate and may be put to one side.
Conclusion
In my view, the application that I be disqualified from sitting in respect of the subject appeal or on any application relating to the vaccination status of the applicant’s daughter must be dismissed.