JE v Secretary, Department of Communities and Justice (No 2)

[2020] NSWCA 243

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

JE v Secretary, Department of Communities and Justice (No 2) [2020] NSWCA 243

Hearing dates:

02 September 2020

Decision date:

02 October 2020

Before:

Meagher JA at [1];
Gleeson JA at [2];
Leeming JA at [3].

Decision:

The amended summons filed 30 April 2020 is dismissed.

Catchwords:

ADMINISTRATIVE LAW – judicial review – appeal from Children’s Court to District Court – whether error of law on the face of the record or jurisdictional error established – no error made out.

PRACTICE – representation of children and young persons in judicial review proceedings – common interest with Secretary – nature of appropriate representation in such cases.

Legislation Cited:

Children and Young Person’s (Care and Protection) Act 1998 (NSW), s 91

Cases Cited:

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

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

Local Democracy Matters Incorporated v Infrastructure NSW (No 2) [2019] NSWCA 118

Category:

Principal judgment

Parties:

JE (Plaintiff)
Secretary, Department of Communities and Justice (1st defendant)
AM (2nd defendant)
SE (3rd defendant)
YE (5th defendant)
Michelle (6th defendant)
District Court of New South Wales (7th defendant)

Representation:

Counsel:
JE (Self-represented)
G Moore (1st defendant)
B Kelly (6th defendant)

Solicitors:
Crown Solicitor’s Office (1st defendant)
MGR Legal (6th defendant)

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. MEAGHER JA: I agree with Leeming JA that the amended summons should be dismissed. In addition to agreeing with his Honour's reasons for making that order, I agree with his observations appearing at [12]ff.

2. GLEESON JA: I agree with Leeming JA.

3. LEEMING JA: The background to this litigation is contained in this Court’s earlier decisions in JE v Secretary, Department of Family and Community Services [2019] NSWCA 162 and JE v Secretary, Department of Communities and Justice [2020] NSWCA 123. It is not necessary to reproduce most of those details in these reasons, which adopt the same pseudonyms as have previously been used, in accordance with orders made on 6 April 2020.

4. The plaintiff JE is the mother of two daughters, referred to by the pseudonyms Michelle and Dora. Officers of the Department of Family and Community Services removed both daughters from her care in 2012. The Children’s Court allocated parental responsibility for the children to persons other than JE. On 22 August 2018, the District Court dismissed JE’s appeal pursuant to s 91 of the Children and Young Person’s (Care and Protection) Act 1998 (NSW). However, this Court in 2019 remitted to the District Court JE’s appeal concerning JE’s daughter, Michelle. Accordingly, there was, last October, a hearing of some six days in the District Court constituted by Robison DCJ followed by an ex tempore judgment delivered on 22 October 2019. His Honour concluded as follows:

“This is a very sad case as indeed all care appeals are sad cases involving various degrees of factors and I having carefully considered the matter and noting that there is certainly an appropriate level of permanency planning which has been made out on the evidence and for completeness, although I note the statutory framework having regard to the nature of this appeal, there is really no realistic possibility of restoration within a reasonable period which by legislation is not to exceed 24 months.

For those reasons, I now make these orders.

Firstly, I am satisfied that permanency planning has been appropriately and adequately addressed.

For completeness, there is no realistic possibility of restoration to the mother.

The summons commencing the appeal is dismissed.

I confirm the decision of the Children's Court of 12 April 2018.”

5. No appeal lies from the decision of the District Court dismissing an appeal from the Children’s Court. Accordingly, JE filed a summons in this Court’s supervisory jurisdiction. When the matter came on for hearing, she moved on an amended summons seeking various orders but she confirmed that in substance she sought to quash the orders of the District Court and have the matter remitted for a rehearing of her appeal. There was no dispute that, in order to succeed, it was necessary for JE to establish either jurisdictional error or error of law on the face of the record (including the reasons).

6. The decision of the District Court turned on a quintessentially factual matter – the fact that Michelle, who is now 17, wishes to remain living with her father as she has for some years now and attending her school (where by all accounts, she is thriving). According to the reasons, the attitude of Michelle was established by the evidence of a Senior Child Protection caseworker who had spoken with her, reports from her teachers at school, and the absence of any reports to the Department concerning neglect or harm by her father. Michelle did not herself give testimonial evidence and her mother did not have the chance to ask her any questions. As JE said:

“It feels like the District Court proceeding matter was a waste of time, your Honour. It didn’t come to a conclusion on anything. It didn’t resolve any issues that are pending with my children. It didn’t justify the position that I was in previous to the fact that I had everything that I needed for my children and I always have. I was there to provide for them; nothing in perspective to that. ... Like I explained, I don’t know [the father’s] address; I don’t know where my daughter is situated; I have no contact with my daughter; I have very little knowledge of her position.”

7. JE maintained that although she had been unwell formerly, she had recovered, and loved her child and was greatly distressed at having been separated from her. She was dissatisfied with the outcome and says it involves procedural unfairness and error of law, without otherwise identifying how that is so. It must be said, as all courts have said in the course of this litigation, that much of JE’s written and oral submissions is difficult to follow. She accepts the need to establish jurisdictional error or error of law on the face of the record, but then relies upon all aspects of her dissatisfaction with the outcome of proceedings and styles them as either procedural unfairness or error of law. For example, she said:

“On that actual justification, we actually went through a proceeding on a fairly arguable case, but it went to immense lengths to get absolutely no award towards myself or my children for it to be in variation of any degree. The reason it was actually brought forward on a question of law is the application for the review of the decisions weren’t made on the actual factors that brought the proceeding matter to the Court on procedural fairness.”

8. As the presiding judge made clear at the hearing, there is no question but that JE loves her daughter and is bringing this, the most recent proceeding, in the sincere wish to resume contact with her. However, that does not alter the fact that this Court may only intervene if there is shown to have been an error of law on the face of the record or a jurisdictional error.

9. In a case such as this, it is appropriate for the Court to review, carefully, the whole of the materials which have been placed before it. That included written submissions and affidavits of JE, and the 29 page judgment of the District Court. I have done so. There is nothing that suggests any error of law, and there is nothing which indicates any procedural unfairness. To the contrary, the primary judge was alert to his obligation to accord procedural fairness, saying the following:

“I appreciate that a considerable amount of time has been allocated to the plaintiff during the course of this appeal in order to achieve procedural fairness. Procedural fairness is not a one-sided concept; it applies to all persons who come to our Courts. If procedural fairness is afforded to the extent where that causes some concern to other litigants, that has to be taken into account by the Court. Mr Kelly who appears for the legal representative, or more correctly the young person, made some reference to the extent to which the plaintiff has been afforded procedural fairness by me during the course of the proceedings last week.

I afford no criticism to Mr Kelly, given what he said after he said certain things about the extent to which the Court has afforded the plaintiff a considerable amount of procedural fairness. The Court is mindful of the fact that the other parties who have participated in this appeal are legally represented, and that comes at a cost. However, the Court has done the best that it can to afford to the extent afforded to the plaintiff an appropriate level of procedural fairness in order to assist her procedurally in presenting her case. The plaintiff, I must say, has failed to come to grips with a number of real issues in this case, and I say this with the greatest of respect to her as she is sitting here listening to this judgment. I repeat, she loves her daughter. Her daughter has made it very very clear that she does not want to be disrupted from her current placement with her father.”

10. At the conclusion of her oral submissions, I asked JE how she said that the proceedings had been procedurally unfair to her:

“LEEMING JA: What I don’t really have a good idea at the moment is what in particular was procedurally unfair in the District Court that by this Court we could make sure didn’t happen next time.

APPLICANT: The fact that there’s no resolution of my children; the fact that the compelling reasons that justify my appeal was that my position and status were intact at the time of the matter, and it’s been intentionally interfered in to make that scope look worse for an advantage point. My children, obviously, I miss them, I love them, and they should be with their mum. There’s been no indication in law that’s relevant, okay, in any status of proof or evidence to verify that the children should be where they are or not be reinstated previous to the fact or even a variation of the orders at procedural fairness hearing. So my scope would be to eliminate the orders or overturn the ruling in regards to Michelle and to Dora that have been initiated from the previous District Court order in 2014. Apparently, they are still intact, the 2014 order in regards to Dora. So this issue isn't resolved in any way in any context at all, because as soon as I finish with this situation with Michelle, there’s another one in regards to my daughter, Dora. So where does it end. This has become a pattern in proceedings where it’s on a constant roll, and it's the same thing over and over again, and that's what it’s been for nearly nine years with seven folders of verification. Everything that I’ve said in my affidavit has been proven in actual fact in evidence. There is no evidence that retains to me from the Department or anyone else in that actual aspect that can actually verify the situation where it is today and all the proceeding matters. It’s been denied on my applications with no apparent reason. It’s not been acknowledged in any favourable content in regards to my position for placement. It’s been avoided. It’s been delayed. It’s been denied.”

11. Having regard to all of the evidence of what occurred in the District Court, and all that was said in writing and orally by JE, no basis to set aside the judgment of the District Court has been made out. It is unnecessary to address a further difficulty, which is that the daughter will turn 18 in some 10 months, following which so far as I can see the orders which JE seeks to challenge will cease to have effect.

Other matters

12. Michelle was a necessary party to the summons. In light of her age, and the seeming commonality of interest with the Secretary, I made an order dispensing with the need for a tutor to be appointed for her in June 2020: JE v Secretary, Department of Communities and Justice [2020] NSWCA 123. An issue arose at that hearing concerning Michelle’s representation when the summons was listed for final hearing, concerning the precise role that Michelle’s representative would play, and the more general question as to the appointment of tutors or independent legal representatives for children and young persons who are necessary parties to proceedings in this Court’s supervisory jurisdiction.

13. In relation to the first aspect of that issue, I said the following at [20]:

“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.’”

14. It was therefore with some surprise that less than a week before the hearing a short written submission (12 paragraphs occupying 2 pages) was filed by counsel retained by the solicitor acting for Michelle. The submission did not materially add to anything which had been contained in the written submissions of the Secretary, which had been filed on 8 July 2020, almost two months before. It corrected a minor factual error as to Michelle’s age, which could have been advised to the Secretary.

15. Neither the Secretary nor Michelle sought costs in the event the summons was dismissed. If costs had been sought, I would not have ordered JE to pay two sets of costs. The ordinary rule is that an unsuccessful litigant should only have to pay one set of costs where there is a single interest on the other side: see Local Democracy Matters Incorporated v Infrastructure NSW (No 2) [2019] NSWCA 118 at [20]-[22] and the authorities there mentioned. Counsel for Michelle advised that he and his instructing solicitor were in the receipt of a grant of legal aid.

16. Michelle is a necessary party. She is entitled to appear, and it is important given her age that she be informed of the course and outcome of the proceedings. That could have been done by a departmental officer, or the solicitor retained by the Secretary. Conceivably, it could have been done by a solicitor appointed by Legal Aid to act on her behalf. The decision to have two additional lawyers paid at public expense who added nothing to what had been advanced on behalf of the Secretary, and might have contributed to something of which JE had complained, namely, the number of lawyers opposing her in this litigation is, in my view, a regrettable one. In light of what Mr Kelly had told me on this point as recorded in paragraph [20] of my earlier reasons, I was surprised that this course was taken. Happily, the late service of submissions did not cause the hearing of JE’s summons to be derailed. I do not know, but I doubt that Michelle, a young woman aged 17, specifically instructed additional submissions to be served, late, which added nothing to those already supplied by the Secretary. I appreciate that the cost to the Legal Aid Commission in the present case would have been small. Nonetheless, it is important that such legal aid as is available be spent – and be seen to have been spent – efficiently and effectively.

17. I turn to the broader issue of how representation should occur in proceedings brought in this Court’s supervisory jurisdiction following an appeal to the District Court. It is obvious that the nature of litigation in this Court is very different from that in courts in which the underlying factual claims are in issue. The threshold issues in this Court will be quintessentially legal. Only if the moving party makes out a case of error of law or jurisdictional error will any relief issue. It is likely that in the very large majority of cases, those issues will be binary: either the proceedings were, or were not, procedurally unfair; either the reasons of the District Court disclose, or do not disclose, error of law. It is unlikely that a child or young person will be able to advance a separate interest from that advanced by the Secretary.

18. The fact that this Court’s jurisdiction is supervisory has the result that some arrangements will have previously been made, in a forum where factual claims are in issue, for the separate interest of the child or young person to be represented. The child or young person will be a necessary party to any proceedings in this Court, but those persons who have previously acted in the interests of that child or young person should be astute to appreciate the different legal circumstances, and approach their roles accordingly.

19. There is no reason why the interests of the child or young person where they are wholly or substantially aligned with those of the Secretary, as will very often be the case in this Court, will not be fully protected by representation which liaises with the Secretary’s lawyers, and informs the young person as and when appropriate of how the litigation is proceeding and what the practical consequences are for him or her.

20. It should not be necessary to say, especially given what was said on 22 June 2020, but while the interests of the child or young person are important, they do not trump the obligations upon, say, a solicitor or a barrister where there has been a grant of legal aid to assist the court to facilitate the just, quick and cheap resolution of the real issues in the proceedings. Where there is nothing additional that may be said on behalf of the child or young person, then that duty requires the lawyers to adopt a more circumscribed approach than occurred in the present case. It is not merely the waste of time and resources and potential for delay. It is not “just”, and it may not appear to be just, for an unrepresented litigant to be faced by a phalanx of lawyers paid for by public funds.

21. The amended summons filed 30 April 2020 should be dismissed.

**********

Decision last updated: 02 October 2020