JE v Secretary, Department of Communities and Justice

[2020] NSWCA 123

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

JE v Secretary, Department of Communities and Justice [2020] NSWCA 123

Hearing dates:

22 June 2020

Decision date:

26 June 2020

Before:

Leeming JA

Decision:

1. Dismiss the notice of motion filed on 25 May 2020.

2. Dispense with the need for a tutor to be appointed for the child “Michelle”.

Catchwords:

PRACTICE – parties – supervisory jurisdiction – review of orders made by District Court dismissing appeal from Children's Court – whether sibling of child should be joined to appeal – whether child the subject of the appeal required tutor – joinder refused, requirement for tutor dispensed with

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 91, 99A, 105

Cases Cited:

BA and LA v Secretary, Department of Communities and Justice [2019] NSWCA 206

JE v Secretary, Department of Family and Community Services [2019] NSWCA 162

Category:

Procedural and other rulings

Parties:

JE (Applicant)
Secretary, Department of Communities and Justice (1st respondent)
AM (2nd respondent)
SE (3rd respondent)
YE (5th respondent)
Michelle (6th respondent)
District Court of New South Wales (7th respondent)
Dora (Respondent to the notice of motion dated 25 May 2020)

Representation:

Counsel:
JE (Self-represented)
G Moore (1st respondent)
SE (Self-represented)
YE (Self-represented)
B Kelly (6th respondent)
D Murray (Dora)

Solicitors:
Crown Solicitor (1st respondent)
MGR Legal (6th respondent)
Coast Law (Dora)

File Number(s):

2020/93541

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Date of Decision:

22 October 2019

Before:

Robison DCJ

File Number(s):

2018/148422

Judgment

1. LEEMING JA: By summons filed on 25 March 2020, further proceedings have been brought in this Court following its earlier decision of JE v Secretary, Department of Family and Community Services [2019] NSWCA 162. That decision dismissed (save in one respect) challenges in four proceedings brought by JE to decisions of the District Court concerning the care of JE’s daughters. An order was made on 6 April 2020 requiring the applicant to be referred to as “JE”, the father as “AM”, the (maternal) grandparents as “SE” and “YE” and the child who has been joined as “Michelle”. The same pseudonyms were used in this Court’s earlier decision, and all parties have proceeded on the sensible basis that that should continue in these proceedings. The anonymity is mandated by s 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW).

2. JE’s proceedings in this Court were unsuccessful, except in one respect, which had been conceded in part by the Secretary (see at [48]). The consequence was the remitter of JE’s appeal pursuant to s 91 of the Children and Young Persons (Care and Protection) Act against orders made by the Children’s Court on 12 April 2018 relating to the child Michelle. After this Court’s decision delivered on 3 July 2019, there was a hearing of the remitted appeal, and by decision published on 22 October 2019, the District Court constituted by Robison DCJ dismissed the appeal.

3. It will be seen that JE’s summons was filed late, although it seems to have been preceded by an affidavit made late last year, to which further reference will be made below. It has been set down for hearing on 2 September 2020.

4. Towards the conclusion of the hearing I made directions giving JE a further opportunity to supply a supplementary submission, in addition to her “Statement of Issues” which the parties had regarded as summarising her submissions in support of her summons.

5. The process which came before me was a notice of motion filed on 25 May 2020. It was not accompanied by any affidavit. In her submissions in reply, JE advised that she wished to rely upon an affidavit made by her on 17 December 2019. The Secretary advised that he had a copy of the affidavit. Other parties advised that they did not. There was a copy on the Court file, although it did not include three-page Annexure A. I made directions at the conclusion of the hearing for JE to supply the Annexure (she having confirmed she relied upon it) to my Associate, for copies of the complete affidavit to be distributed to the parties, and giving them an entitlement (although not an obligation) to supply any further submissions arising on the affidavit by 4pm 23 June 2020. I am satisfied that a copy of the affidavit including the annexure was provided to all the parties by Tuesday 23 June 2020, although not precisely in the manner contemplated in the directions, and that the parties had an opportunity to respond to it (SE and YE made a short response, the Secretary said he did not wish to respond).

6. The notice of motion seeks the following orders:

“1. Supplementary Provisions Part XI Provisions relating to constitutional matters Division 1A Section 78B Notice to Attorney General.

2. Care matter to proceed regards to my daughter Dora to be added in the Jurisdiction of Courts (Cross – Vesting Act 1987 No 125) and under the constitution in Family Law.

The Supreme Court

a) May exercise jurisdictions (whether original or appellate) conferred on that court by a provision of this act or of law of the commonwealth or state relating to cross vesting of jurisdiction

b) May hear & determine a proceeding transferred to that court under such a provision.

#The Evidence Act 1995 SECT – 126 D Loss of Professional Confidential Relationship Privilege & Misconduct.

3. The Uniform Evidence & the Common law 7.4 Section 59 of the uniform evidence acts provides general exclusionary hearsay rule made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation.

4. #UCPR 12.10 Stay of further proceedings to secure costs of proceedings dismissed (cf SCR Part 40 Rule 8 (2) DCR Part 18 CLR Part 17, Rule 9)

5. #UCPR Civil Procedural Rules 2005 1.17 Bulk Transfers between Supreme Court Divisions (cf SCR Part 14A Rule 7) – Claim to relief and compensation - # UCPR 15.6 Claim of out of Pocket Expenses (cf SCR Part 16, Rule 5; DCR Part 9, Rule 23, LCR Part 8, Rule 5)” [sic]

7. This was supplemented by a statement of issues sought to be raised by her notice of motion, which is difficult to summarise, and best reproduced verbatim.

“STATEMENT OF ISSUES

1. #UCPR Stay of further proceedings to secure costs (cf SCR Part 40 Rule 8 (2) DCR Part 18 LCR Part 17, Rule 9)

The challenge of procedural error that has implied financial hardship and asserted intentional loss in my position in matters before the courts and deferring placement to both my girls by its misuse and perversion and the unjustified classification within law.

# Financial Hardship (Section 72.75 NCC) Unjustness (ss 76.81 NCC) Definition of unjust includes unconscionable, harsh or oppressive (S76 (81) ccc).

# UCPR Notice of motion 18.9 (cf SCR Part 34, rule 6 (1) Directions as to conduct of proceedings on a notice of motion, In proceedings on a notice of motion the court may give directions as to the order of evidence & address generally as to conduct of the proceedings.

# Evidence Act 1995 – SECT 66A Exception contemporaneous statements about a person health

The originating case did not produce any appropriate ground that is permitted in law and stating its improper use towards me using a medical condition or any sustainable proof of that statement to inflict the emotional abuse through a family law matter, nor did the quotations of my residential status being used repeatedly, as I secured my 2 homes over 8 years through proceedings and it was never taken into consideration and this has been my pursuit constantly in the courts.

2. Cross - Vesting / Claim Act 1987 No 25 Jurisdictional law to a Constitutional Matter,

# UCPR 14.27 Joinder of issue

To include the cross vesting/claim to my daughter ‘Dora’ stating its failure to comply and provide any reasonable legal ground that has now, appointed its new direction to Supreme Court - Supervisory Jurisdiction regards to ‘Michelle’ and now this separate motion of the entire case situating my statutory right as a parent to my daughter ‘Dora’ with a legal claim incorporating and transferring other associated matters in the appropriate divisions.

3. The relief I am sorting is the removal of the judgements and orders imposed in the federal court circuit, involving Central Coast District Health (Gosford Hospital) and the measures implied by FACs specifying the separation of my children and emphasising this puzzle effect by its under lining issues, on the pursuit of this motion.

# Judicial review Australian Law reform Decisions (Act 1977) (Cth) (ADJR) Act as part of wide ranging reforms to federal by its jurisdiction.

The pursuit obtaining grounds in public reference of relevance to family law on the action taken regards to both my girls and stating again its use was medical profiling as its action.

4. Noting as part of this motion I have included my parents due to the original jurisdiction appointing them as the careers of both my children Dora & Michelle.

5. Noting AM is also involved due to his participation in previous procedures and the associations to placement affecting my girls.

The recent submission to Supreme involved a procedural hearing allocated back to District Court for a procedural fairness due to pass conduct, the clause of action should have been distinguished in common law division due to a huge error in law with my daughters ‘Dora and Michelle’ and this was the structure to begin with and should have been continued in this appropriate form and not a completely separate order as a upper hand to delay a resolution in this case, as what FACs implied in the original order states different, to what is does now by its definition to protective care and what is the basis in this action by law, when it is proven I have not done anything wrong.

# 15.31 – Stating countries has the bill of rights and human rights are a statue to provide some protection within procedural fairness.

# Section 41 of the Family law Act 1975 Proclamation made under subsection 41(2)

Access to the courts for the purpose of judicial review is an important common law right.

6. The clause that was disbursed was related to accusation of my health (Graves Disease) in 2010 and has elevated by a incorrect personal submission and produced its procrastination through the courts and is against all guidelines and policies medically and includes invasion of personal information within the privacy laws and is a vexatious avenue by its use to impose only spoken words and no proof and its predictability in using power for the direction to impair a resolution.

# 15.13 in addition to common law s75 (v) constitution provides for an entrenched minimum provision of judicial review section 39B (1) of the judicial Act 1903 and extends the original jurisdiction of the High Court.

# The Uniform Evidence & Common law 7.4 Section 59 of the uniform evidence acts provides general exclusionary hearsay rule made by a person is not admissible to prove the existence of fact that the person intended to assert by the representation.

7. #UCPR Civil Procedural Rules 2005 1.17 Bulk Transfers Between Supreme Court Divisions (cf SCR Part 14A Rule7),

The pursuant federal grounds in compensation in common/equity division in accrued jurisdiction within the context of Australian legal system is power held over state matters by, accrued jurisdiction will occur where there are several cases brought to the federal court of Australia (FCA) where there are competing jurisdictions between them.

The matter concludes to the administration in the division of common law and equity with the consideration to federal administration for the claim to relief to compensation.

#Section 33/1901 – 15.13 In addition to common law, 5.75 (v) of the constitution provides for prerogative writ. The prerogative / constitutional writ (official order) directing the behaviour of another arm of government such as an agency official or court.

• # Mandamus - the judicial remedy in the form of a order from a court to any

government subordinate court, corporation or public authority, to do some specific act which act which that body is obligated under law to do and which is in the nature of public duty, and in certain cases one of a statutory duty.

The overall situation has produced a unproductive measure through the courts affecting my rights with no clause to act consuming my time every year with constant court proceedings involving my children, whereas I found other relevant issues difficult to address and now it is upon the attention of Supreme Court as follows;

• The renowned problems in duty of care and medical exploitation, that reflects from Gosford Hospital that has continually rectified problems in its pathway, that has become submission to a scandalous legal pattern starting through the Guardianship Tribunal regards to me and around my pregnancy of my baby ‘Dora’ and using a medical condition (graves disease) as source structure and this also includes the association to Clinician Bronwen Elliott care plan and including a counselling/mental health by FACs directed assessment of my girls.

• And adding on the action in 2012 at Apollo Motel (whereas I asked for help in my residential situation as well with media and government electorate office at The Entrance through Maurice Cramsie)

I had been staying in this accommodation and on its initiation of FACs to take my children and when I asked for the legal reason and documents that obtained this instigated action, whereas I was cuffed and reprimanded, even though’ I did nothing wrong’ as I was in a motel where my children and I were staying and previous to this I was at Blue Haven Caravan Park - owners Graham Dagger.

And informing the original proceedings also involved the solicitor Ellis / Robert McLachlan and Elizabeth Moran in the judicial process.

• The pursuit involving privacy breaches and the misuse of my personal information through government/media departments by its actions using information and by its interference.

#UCPR 13.22 Breach of confidence actions for misuse of private information

#UCPR 15.5 Allegation in the nature of fraud

• The claim to family heritage and beneficiary to a ‘Will’ that is related to a Australian Veteran of War of my Great/Great Grandfather. Noting my late Aunt Helen [XXX] made the alteration a year previous to the original ‘Will’ just before her death my Aunt added a friend as the beneficiary and I believe her name is Margaret Helen Hinton and it has the suspicion because by its similar aspects in my case through delays counteracting me as a beneficiary and this occurred whilst I had the problems with FACs and Gosford hospital and then the courts process.

# UCPR 2005 - REG 6.18 Joinder of clauses of action” [sic]

8. During oral submissions, when asked, repeatedly, to identify with particularity the orders that were sought, the applicant agitated a number of complaints including some involving breach of confidence, rights at common law and under the Constitution, and a remedy of mandamus. It is clear that JE has a number of wide-ranging complaints, which I accept are genuinely held by her. Included within those complaints was her application to seek to join her daughter “Dora” to the proceedings.

9. All of the respondents to the proceedings opposed the orders sought in the notice of motion, and the other orders elaborated in JE’s oral submissions.

10. It was evident that JE wishes the order of the District Court quashed. As I explained during the hearing, the court constituted by a single Judge of Appeal has no power to do so, and that was a matter for the Court constituted by three judges on 2 September 2020.

11. The only paragraph of the notice of motion which identifies an order which may appropriately be sought in the interlocutory hearing before me is paragraph 2 insofar as it seeks an order joining the other daughter, Dora, to the proceeding.

12. As noted at the outset, the very limited success enjoyed by JE from this Court’s orders last year meant that the only issue before the District Court was the appeal against orders made by the Children’s Court relating to Michelle. The only issue on the summons in this Court is whether the District Court committed jurisdictional error or error of law on the face of the record in determining that remitted appeal: see JE v Secretary, Department of Family and Community Services [2019] NSWCA 162 at [7]. The other daughter, Dora, is not a necessary or proper party in relation to those issues.

13. It appears from pages 3 and 4 of the reasons of Robison DCJ that at some point counsel retained by Dora had appeared. The materials before me do not disclose anything beyond that, and the fact that counsel had sought to be excused, and his Honour’s acceptance that “Dora, frankly, is not involved in these proceedings at all”. His Honour returned to the point at p 27 (“She still wants her daughter Dora to be included in the matter. For the reasons I have given in this judgment, that cannot be the case”).

14. Notwithstanding what emerges from the course of the remitted hearing and the reasons for judgment, I would not categorically exclude at this stage the possibility that Dora might have an interest in being heard if debate arose as to any question of relief in the event that jurisdictional error or error of law on the face of the record had been made out. The essential background is that both daughters have been separated from their mother for many years and at least one of them firmly expresses the view that she does not wish to be reunited.

15. But I do not think it is appropriate to join Dora against the possibility, which is at presently merely theoretical, that the issue summarised above might arise during the proceedings. If jurisdictional error or error of law is made out, and there is a prospect of an order that will affect Dora, then I am confident that the Court will be able to ensure that the proceeding is properly constituted and that she is given procedural fairness. My conclusion has been informed in part by reading the reasons of the District Court which are sought to be challenged in these proceedings, and the summons and written submissions to date made by JE. I have not of course heard argument on the summons, but based on my review alone, I am not persuaded that the interests of the just, quick and cheap resolution of the real issues raised by JE’s summons require joinder of Dora now, against the possibility that questions of relief arise.

16. In reaching that conclusion, I have also had regard to a document supplied to the Registry late on Friday afternoon. I was told that that was a draft document, supplied erroneously by the solicitor acting for Dora, although counsel frankly acknowledged that the fault was his. I had read the short document of 10 paragraphs prior to the hearing. It concluded with a submission that the involvement of Dora’s carers could directly involve the interests of Dora, with the result that the Independent Legal Representative might be required to make a meaningful contribution. What that contribution might be was not articulated. The document did not address how the Court would be assisted meaningfully on the issues of jurisdictional error and error of law on the face of the record. Although, as noted above, I acknowledge the theoretical possibility that there may be a role for separate representation of Dora, that is contingent on one or more of the grounds of review being made out.

17. I intend no disrespect to JE, but the remaining prayers of the notice of motion, and what was said in their support both in writing and orally, falls short of any order which I would consider to be appropriate in the circumstances of this proceeding. There is nothing in the affidavit (including the annexures) which alters that. I shall not attempt to summarise the affidavit, because it would be difficult to do so, and to no useful end. Representative of the affidavit is paragraph 7:

“The overall establishment to decipher or condense this case as one complete legislative construction has been difficult in my pursuit for legal help. And again I have sort to apply for assistance through legal aid, pro bono & legal access and the situations remains the same.

The characteristics of this case to one area of construction in legislation is a difficult pursuit and the channels offered in legal schemes, does not have the capacity to deal with matters like this, as to its difficult context of structure to define its category and the problem, is not one domain of law and the legislation criteria for legal assistance and it is limited due to its merit requirements through these schemes.” [sic]

18. It follows that the notice of motion filed 25 May 2020 should be dismissed.

19. On 25 May 2020 the Registrar reserved the question of the appointment of a tutor for Michelle to 22 June 2020. The Secretary addressed this in his submissions, pointing to certain practical difficulties in finding a tutor if the course suggested in BA and LA v Secretary, Department of Communities and Justice [2019] NSWCA 206 at [63]-[69] were followed. He also observed that the children in that case were very young, while Michelle was 16 and capable of giving instructions, and was in fact represented by her “direct legal representatives” pursuant to s 99A of the Children and Young Persons (Care and Protection) Act.

20. Two issues potentially arise. The first is what is to occur at the hearing on 2 September 2020. Michelle is a necessary party and, in the circumstances of this case, what has previously occurred should continue. I will dispense with the need for a tutor, with the intent that to the extent necessary the legal practitioners presently retained continue to take instructions from Michelle. However, it will have been clear from the hearing, and as Mr Kelly frankly acknowledged, that Michelle had a common interest with the Secretary. It by no means follows that Michelle’s interest requires her to be represented by a lawyer physically appearing in court on 2 September 2020. It seems to me that where a common interest is plain, the Secretary could, to the extent appropriate, expose the approach proposed to be taken in responding to the summons to Michelle’s solicitor, who might readily form the view that her interests were adequately protected by the stance proposed to be taken. I am also confident that those participating in the hearing were alert to the difficulties presented by an unrepresented litigant being faced by a large number of legal practitioners, as was plain from this exchange:

“KELLY: However, the Secretary will no doubt have a common interest. So, really, we would be just following their submissions. So it’s a matter of whether we all need to be there given that I’ve just heard the applicant here talk about how she was bullied during the Robison DCJ hearing with the number of lawyers to face.

HIS HONOUR: I apologise for interrupting. We all know that the appearance of justice matters, and there is something a bit like David and Goliath when one has an unrepresented litigant against multiple parties separately represented, all at the State's expense, all saying the same thing. I think that may be one of the things the registrar had in mind. I’m appreciative, Mr Kelly, that you’re sensitive to it.”

21. I am conscious that there may also be a more systemic issue of how to address the representation of children in proceedings in this Court brought by way of judicial review from decisions of the District Court determining appeals from the Children’s Court. Although that issue may only infrequently arise, it was mentioned in this Court’s reasons in BA and LA and was the subject of the Registrar’s direction. I think it is better if that is addressed at the hearing on 2 September 2020, rather than being addressed by the Court constituted by a single Judge of Appeal.

22. The parties were advised on the morning of Thursday 25 June that judgment would be delivered at 10am on Friday 26 June. Very early on the Friday morning, JE supplied by email to my Associate a document described as "AFFIDAVIT OF [JE] for the 29/6/20". Copies appear not to have been supplied to the other parties. The document may have been intended to form the supplementary submission for the hearing of the summons, and I have caused copies to be sent to the other parties at the same time as the reasons are supplied to them. I have also placed a copy on the file. In part the document refers to the notice of motion. Because JE is unrepresented, I have read it. It does not alter any aspect of my reasons.

23. I shall make the following orders:

1. Dismiss the notice of motion filed on 25 May 2020.

2. Dispense with the need for a tutor to be appointed for the child “Michelle”.

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Decision last updated: 26 June 2020