GD v Director General, the Department of Community Services S103/2001

[2001] HCATrans 589

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S103 of 2001

B e t w e e n -

GD

Applicant

and

DIRECTOR GENERAL, THE DEPARTMENT OF COMMUNITY SERVICES

Respondent

Application for special leave to appeal

McHUGH J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 20 NOVEMBER 2001, AT 12.40 PM

Copyright in the High Court of Australia

MR D appeared in person. 

MR G.W. MOORE:   May it please the Court, I appear for the respondent.  (instructed by Crown Solicitor for New South Wales) 

McHUGH J:   You are Mr D? 

MR D:   I am Mr D, yes, your Honour. 

McHUGH J:   Yes.  You are appearing for yourself, you are not represented, Mr D? 

MR D:   I am appearing on behalf of my children and myself, your Honour. 

McHUGH J:   Proceed with your submissions.  It might help if you come to the Bar table, Mr D. 

MR D:   Thank you, your Honour. 

McHUGH J:   Just relax, do not be nervous.  Mr D, I have read the material here.  I understand your concern, but you have to understand we sit as a court of law, and the Court of Appeal held – and, at the moment, as far as I can see, correctly – that it had no jurisdiction to hear an appeal.  If it had not jurisdiction, then we have no power to order them to hear the matter.  We are not here as an ombudsman; we just cannot go and write whatever we may personally happen to think is right or wrong.  I am not suggesting anything is right or wrong in this particular case, but that is the problem.  It seems to me, at the moment, that there is just nothing that we can do for you.  But if you have something to put to us, please do. 

MR D:   Can I just – have you a copy of the additional book? 

McHUGH J:   Yes, we have a copy of your application book, and your additional appeal book, and also your reference, and so on. 

MR D:   In the additional book, page 8, there is a – it is called a “Substitute Care Information Sheet”. 

McHUGH J:   Sorry, page 8? 

MR D:   Page 9, it starts.  Sorry, your Honour. 

McHUGH J:   In the additional book? 

MR D:   Yes, your Honour.  Page 9. 

McHUGH J:   Yes. 

MR D:   Essentially, this is a document that I did not have access to prior to the District Court hearing.  I do not believe that I had a case to answer, the way it was done in the Children’s Court, and this document was prepared before they had received their complaint to actually lawfully remove our children.  It was done for long-term, your Honour.  Page 15 is a letter from the Children’s Court Magistrate, who made a finding against myself.  Essentially, nothing was contested.  My understanding was, the matter was being adjourned to work privately with the Department to have our children back. 

McHUGH J:   Yes, but Mr D, the problem is this, that there was a decision in the District Court.  Now, the Court of Appeal held that that was the end of the matter, in terms of appeal.  There was no right of appeal beyond the District Court.  The order that comes here is the order of the Court of Appeal and, at the moment, I cannot see any ground for thinking that the Court of Appeal was wrong.  In other words, under this legislation, once the case goes to the District Court, that is the end of the matter, so far as appeals are concerned. 

MR D:   Yes, your Honour.  I guess, back to the rules of the Act that we were working under, and, again, on the authorities I have, the first page is an adjournment by the Children’s Court, which states in their rules that it should not be past 42 days.  They have a time limit to sort out the issues.  This went into two years, your Honour.  They delayed the case deliberately for two years, played on the stress, had our children in bad situations, and that was went against us, your Honour. 

McHUGH J:   I understand the way you complain about these things, but the point is the Court of Appeal was powerless.  This Court is powerless to do anything.  Even – let it be assumed in your favour that everything that you say is right, Parliament has said that the matters are to end with the District Court, so far as appeals are concerned. 

MR D:   I have had the best part of 100 days in court.  I do not even see my children, your Honour.  I do not think it is fair.  The only place I can get some relief is from the Court.  All I have done is responded to an action that has been taken against me and against my children.  I have played it by the book, I believe:  I have turned up to court, I have tried to defend to the best of my ability.  I think it speaks for itself that something is not right with this.  If you look at the court cover sheets, a lawyer misled me, misled the court, and claims here that she represented both parents.  Well, in fact, she did not, your Honour.  It has been impossible to get a lawyer after to follow that. 

McHUGH J:   Yes, I know, but the point is that Parliament has made it clear, in enacting this legislation, that appeals end with the District Court.  That is the end of the matter.  Once the case is decided by the District Court, that is it.  The Court of Appeal cannot interfere; we cannot interfere. 

MR D:   Again, my concern is that the judge in the District Court was biased.  The information, basically, was issues of privacy, and he discriminated against me.  That judgment is going to discriminate against my children, and, if nothing else, if I could just get that judgment removed from the record, we could probably improve on what is a bad situation, your Honour. 

McHUGH J:   Well, that is it.  I understand that, but the judges in the Court of Appeal suggested to you that you might seek some legal advice concerning the issue of what are called prerogative writs, but that is not the point that comes up to us. 

MR D:   No, I guess I am saying it is an injustice, your Honour ‑ ‑ ‑

McHUGH J:   I know.  There are a lot of injustices in this ‑ ‑ ‑

MR D:   ‑ ‑ ‑ and that it breaks our Constitution. It has not been done justly. To use the term, we have been “ripped off” by these people. Our children have been stolen, and they have hidden behind the courts. I believe that, through 1998, it was virtually contempt of court what they were doing to us. There were some very serious issues; I do have serious issues, serious concerns, your Honour, and it appears they have used the courts for their own advantage.

McHUGH J:   There were various allegations made against you and the mother, in terms of caring for the children, and ‑ ‑ ‑

MR D:   Again, I think those allegations were fabricated or a bit of a beat‑up, because of the issues.  I had brought considerable attention on myself, I guess, criticising the care of one of my children in that hospital, which probably led to undue attention being caused upon me.  It seems like it has caused some sort of political – to use the word – conspiracy, your Honour, in these issues. 

McHUGH J:   Yes, but it comes back to this, that there is nothing we can do because we just do not have any power, any more than the Court of Appeal had any power.  The only way that this can be resolved from your point of view would seem to be at a political level. 

MR D:   I understand, and that was my understanding, that it should have been dealt with towards the end of 1998 at ministerial level.  I pushed for it to be done at ministerial level, because that is where the problems were coming from, or my perception, anyway. 

McHUGH J:   Well, that is where you have to go, I think, because we have no power to intervene, I am sorry to tell you.  Neither did the Court of Appeal.  That is why the Court of Appeal said it could not help you.  It just had no power. 

MR D:   I guess the whole gist of the Department’s case is that they perceived we had a health problem, ie a prescribed drug problem.  I, again, provided affidavits and urine analysis for the court that appeared to have not been considered by the Magistrates.  But if that was a problem, we overcame that in 1998, and it just got more difficult, your Honour. 

McHUGH J:   Yes, I understand what your complaint is, but Parliament appears to have made the District Court the last word on this matter, so far as courts are concerned.  We have to obey Parliament; so does the Court of Appeal; and there is just nothing that we can do in relation to the matter.  We cannot examine what the District Court did, because we just do not have any power to do so. 

MR D:   I believe there was considerable information for the Court of Appeal on the writ of certiorari to consider dismissing the judgment of Judge Naughton.  There was a letter from Dr Knight who, on the face of it, says that he supported my case.  There was a reference from work, and there was some other material that was filed with an affidavit that appears not to have been considered, and appears not to be put in the application book today, your Honour.  The judgment is in there.  Again, I object to the judgment being in there if I am not going to get the opportunity to have this reviewed. 

McHUGH J:   There is a judgment in here dated 26 April.  Now, what other judgment is there? 

MR D:   On page 1 is reasons for judgment of Judge Naughton. 

McHUGH J:   Yes. 

MR D:   I disagree with most of the stuff that is in there, and to use a comparison, the judgment of the Children’s Court Magistrate and the judgment of the District Court judge appears to be two different cases, so to speak.  They are just so different.  My application here – there must be 70 days in court that we tried to correct, in the summary – and without legal representation, your Honour, I just do not believe it is fair. 

McHUGH J:   Well, you are obviously under a difficulty if you have not got legal representation, particularly when dealing with involved matters such as writs of certiorari. 

MR D:   The letter that was addressed to Registrar Irwin is page 32 of the additional book.  That was addressed to the Registrar and to the Legal Aid to try and take a clean page for me to – and I was prepared to take a back seat, to put the past, and to start from here.  Again, I could not get that application heard, to try and improve on what, for us, is a bad situation.  There are a lot of bonding and attachment issues – all the children have been separated.  Their intentions were to split up the family, and we do not have contact, your Honour.  It is very cruel.  And it is the children – they are not happy about it, and they certainly have not upset anybody. 

McHUGH J:   Do you see your children at all? 

MR D:   No, your Honour.  I think one of the problems is that the Crown has put false facts to the court.  One of those false facts is that they believe that I need psychiatric treatment, and that is not true.  I think that is just an issue that they use.  It has never been the case in my life; I have never had that problem.  That is one of the reasons why it ends up in this Court, because I believe that false information has been provided, either to the Crown solicitors, or to DOCS, and it has gone on to the courts. 

McHUGH J:   Well, Mr D, as I say, it does not seem to me there is anything we can do to further what you want to do.  If you would not mind taking a seat for a moment.  What do you say about this, Mr Moore?  In the application book, there is reference to dismissing an application for certiorari, but I cannot see anything in the book which indicates that certiorari was ever sought. 

MR MOORE:   No, it was never sought.  It was raised in the respondent’s submissions to the Court of Appeal, and Justice Hodgson seems to deal with it at page 36 of the application book. 

McHUGH J:   That is right at the end of the ‑ ‑ ‑

MR MOORE:   Yes.  At line 45, paragraph 17 of the judgment. 

McHUGH J:   But right at the end of the judgment – yes. 

MR MOORE:   So there was material before the Court of Appeal in the nature of employment records, and so forth, that are referred to over the next page, on page 37. 

McHUGH J:   Yes, thank you, Mr Moore.  Well, Mr D, the point is that you sought a remedy by way of appeal and, as I have said to you, the Court of Appeal has no jurisdiction, but there has never been any formal argument that a writ of certiorari should issue.  You have to go through certain procedures.  Now, that is the course that may be open to you at some later stage – well, when I say, “later stage”, after today – but, so far, no such application has been made to the Court of Appeal. 

MR D:   I had never heard of it, to be honest, your Honour. 

McHUGH J:   I understand that.  It is not surprising. 

MR D:   Yes.  And when I got the respondent’s submissions, it was in there and it was raised by the respondent.  I do believe that they did consider it that – also, there was a white folder.  Essentially, the additional book contains most of what was in the white folder:  the affidavits, the urine analysis, the photos, the letters, medical reports.

Again, going on the medical issues, the Department are authorising what are potentially fatal procedures to my children.  They have been exposed to diseases such as meningococcal disease.  My son has had a hip release surgery for what is a brain injury.  The eye surgeries they do not need.  This is not good, your Honour.  They just run them through Medicare, the doctors just keep them coming back.         I just have genuine concerns about the whole concept of what they have sold to the public as being all good, your Honour.

McHUGH J:   Yes, but ‑ ‑ ‑

MR D:   When you are in the High Court of Australia, you are fighting barristers.  You have had to go right through the system.  You do not even see your children.  I do not believe I had a case to answer at the start, on the first day.  I believe that the hospital had a case to answer and it has just been turned back on us, your Honour, and I just do not think that that can be justified.

McHUGH J:   Well, I am afraid whether it can or whether it cannot be, Mr D, is that there is no remedy available to you in this Court.  I think we understand what you have said and what your concern is and it is clear that you think a terrible injustice has been done to you, but there is nothing that we can do to help you.  I do not think you can advance the matter any further.  I think that you have said what can be said, and that is the end of the matter, I am afraid, Mr D, at least in this Court.

MR D:   Okay.  Your Honour, I did take the advice in the respondent’s summary or their reply - was to go back to the Children’s Court, apply for

variation or a rescission in that court.  My intentions were just to apply for a variation to have one child restored and access to the other three and try and have them placed together.  I could not even get into court to have that application.  The barrister opposed me, your Honour.  You know, like something has got to be done where it is done justly and where we have some say, we have some rights because they have all been taken away and it is the barristers that are fighting for the entitlements and the rights of a department that tell me they are just in it for the money.

McHUGH J:   Thank you, Mr D. 

There is no reason to doubt the correctness of the judgment of the Court of Appeal in this matter.  Accordingly, the application for special leave must be dismissed.

MR D:   Just one thing:  I believe that when I did go to the Supreme Court, I went before the registrar on three or four occasions before he ultimately dismissed the application.  I sought a review.  That came back before the registrar again on two occasions.  I believe that that process was not appropriate.  My understanding was that if the registrar makes a decision, a review of his decision then goes to a judge.  It kept going back before the registrar.

McHUGH J:   The point is that you are seeking to bring an application against an order of the Court of Appeal of New South Wales which held it had no jurisdiction to hear the appeal, and that seems to be quite clearly the case.  The Court of Appeal had no power to hear an appeal, and that is the end of the matter, I am afraid.  I am sorry, Mr D.

MR D:   Just one last thing:  so I guess if it could be pointed out that they have not played by the rules, does that sort of say that they should be disqualified, to use just a layman’s term, your Honour?

McHUGH J:   If they have no jurisdiction, they have no jurisdiction, I am afraid, Mr D.  That is it, thank you.

AT 1.01 PM THE MATTER WAS CONCLUDED