JE v Secretary, Department of Family and Community Services

[2019] NSWCA 162

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

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

Hearing dates:

21 June 2019

Decision date:

03 July 2019

Before:

Bell P at [1]
Gleeson JA at [2]
Leeming JA at [71]

Decision:

2018/287363
(1)   Notice of appeal filed 17 September 2018 is dismissed as incompetent.

 

2018/287395
(1)   Summons seeking leave to appeal filed 17 September 2018 is dismissed as incompetent.

 

2018/347455
(1)   Vary the order made by Judge Olsson on 22 August 2018 by adding after the words, “The summons is dismissed”, the words:

 

“except for the applicant’s appeal pursuant to s 91 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) against orders made by the Children’s Court on 12 April 2018 relating to the child, Michelle (the s 91 appeal).

 

(2) Remit the proceedings to the District Court for determination of the s 91 appeal according to law.

 

(3)   The Secretary of the Department of Family and Community Services to pay the costs of the applicant, and the costs of Michelle, Dora, and SE and YE in this Court.

 

2019/122139
(1)   Application for an extension of time to seek leave to appeal is refused.

 (2)   Summons seeking leave to appeal filed on 18 April 2019 is dismissed with costs.

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 – where common ground that applicant not accorded procedural fairness

 

ADMINISTRATIVE LAW – procedural fairness – common ground applicant denied procedural fairness – whether discretionary grounds to refuse relief – whether proceedings should be remitted to the District Court

  APPEAL – leave to appeal – where statement of claim in District Court struck out for disclosing no reasonable cause of action – discretion to extend time to apply for leave – where no explanation for 29 months delay – whether case is fairly arguable

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 3, 43, 62, 86, 90, 91
Civil Procedure Act 2005 (NSW), s 56
Commonwealth Constitution, s 75(v)
Supreme Court Act 1970 (NSW), s 69
Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28, 50.3, 51.10(2)

Cases Cited:

Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Blackmore v Browne; Kara Kar Holdings Pty Ltd v Blackmore [2011] NSWCA 114
Colquhoun v District Court of New South Wales [2014] NSWCA 460
DC v Secretary, Department of Family and Community Services [2017] NSWCA 225
Druett v Director-General of Community Services [2001] NSWCA 126
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jaycar Pty Limited v Lombardo [2011] NSWCA 284
Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1
Muldoon v Church of England Children’s Homes Burwood (2011) 80 NSWLR 282; [2011] NSWCA 46
PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389; [1949] HCA 33
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57
Re Refugee Review Tribunal; Ex parte HB [2001] HCA 34; (2001) 179 ALR 513
Rodger v De Gelder (2011) 80 NSWLR 594; [2011] NSWCA 97
Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369
X v Director General of the Department of Community Services [2001] NSWCA 413

Category:

Principal judgment

Parties:

2018/287363
JE (Appellant)
Secretary, The Department of Family and Community Services (First Respondent)
AM (Second Respondent)
Central Coast District Health (Third Respondent)

 

2018/287395
JE (Applicant)
Secretary, The Department of Family and Community Services (First Respondent)
Central Coast District Health (Second Respondent)
AM (Third Respondent)

 

2018/347455
JE (Applicant)
Secretary, The Department of Family and Community Services (First Respondent)
AM (Second Respondent)
Michelle (Third Respondent)
Dora (Fourth Respondent)
SH (Fifth Respondent)
SE (Sixth Respondent)
YE (Seventh Respondent)
District Court of New South Wales (Eighth Respondent)

  2019/122139
JE (Applicant)
Secretary, The Department of Family and Community Services (First Respondent)
Central Coast District Health (Second Respondent)

Representation:

Counsel:
2018/287363
Applicant in person
Mr G Moore (First and Third Respondents)

 

2018/287395
Applicant in person
Mr G Moore (First and Second Respondents)

 

2018/347455
Applicant in person
Mr G Moore (First Respondent)
Mr B Kelly (Third Respondent)
Ms E Moran (Fourth Respondent)

 

2019/122139
Applicant in person
Mr G Moore (First and Second Respondents)

   

Solicitors:
2018/287363
Crown Solicitor’s Office (First and Third Respondents)

 

2018/287395
Crown Solicitor’s Office (First and Second Respondents)

 

2018/347455
Crown Solicitor’s Office (First Respondent)
MGR Legal (Third Respondent)
Coast Law (Fourth Respondent)
District Court of New South Wales (Eighth Respondent)

  2019/122139
Crown Solicitor’s Office (First and Second Respondents)

File Number(s):

2018/287363; 2018/287395; 2018/347455; 2019/122139

Publication restriction:

Yes. A non-publication order prohibiting publication that would identify or tend to identify the parties (other than the Secretary, Department of Family and Community Services, and the District Court of New South Wales) except for the purpose of the proper conduct of the proceedings.

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Date of Decision:

9 November 2016; 22 August 2018

Before:

Gibb DCJ; Olsson SC DCJ

File Number(s):

2016/194695; 2018/148422

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, referred to as JE, is the mother of two daughters, referred to by the pseudonyms Michelle and Dora, the subject of care orders under the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the Care Act”) allocating parental responsibility to persons other than her.

JE brought two proceedings in the District Court. In the first proceeding commenced in 2016, she sought damages from the State of New South Wales, the Central Coast Local Health District, and others arising out of the circumstances in which her children were removed from her care in 2012 (“the damages proceeding”). The second proceeding in 2018 was a summons pursuant to s 91 of the Care Act appealing from orders of the Children’s Court which varied an existing care order allocating parental responsibility for the child, Michelle, from her maternal grandparents to her father (“the s 91 appeal”).

On 9 November 2016, the District Court ordered that the damages proceeding be dismissed under r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) and that the statement of claim be struck out pursuant to UCPR, r 14.28 for pleading no reasonable cause of action against any legal entity.

In relation to the s 91 appeal, the Secretary of the Department of Family and Community Services (“the Secretary”) and the Central Coast Local Health District filed a notice of motion seeking orders that the proceeding be struck out insofar as they related to the child, Dora, and insofar as the Central Coast Local Health District was named as a defendant. On 22 August 2018, the District Court (Judge Olsson) dismissed the summons in its entirety.

JE sought leave to appeal Judge Gibb’s decision dismissing the damages proceeding and also sought judicial review of Judge Olsson’s decision in the s 91 appeal. It was common ground that the District Court had not accorded procedural fairness to JE insofar as JE was denied a hearing on the merits of her challenge to the variation of Michelle’s care orders. JE and the solicitor for Michelle both submitted that the s 91 appeal should be remitted to the District Court. The Secretary and Michelle’s maternal grandparents opposed the grant of relief on discretionary grounds, relevantly, the ground of utility.

The principal issues raised on the applications were:

Whether the Court should grant an extension of the time to seek leave to appeal against the dismissal of the damages proceeding.

Whether the Court should refuse to remit the s 91 appeal to the District Court on discretionary grounds.

The Court (Gleeson JA, Bell P and Leeming JA agreeing) refused leave to appeal against the dismissal of the damages proceeding, but allowed the application for judicial review of the s 91 appeal and held:

As to issue (1):

The application for leave to appeal from Judge Gibb’s decision should be refused as it was attended by gross delay without explanation and the applicant did not demonstrate that she had a fairly arguable case: [63].

Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [14] and [55]; Blackmore v Browne; Kara Kar Holdings Pty Ltd v Blackmore [2011] NSWCA 114 at [19] (Campbell JA); Jaycar Pty Limited v Lombardo [2011] NSWCA 284 at [46]; Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]; Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28] applied.

As to issue (2):

The appropriate relief for the denial of procedural fairness was to remit the s 91 appeal to the District Court for determination according to law. Although the Court has a discretion to refuse relief on the ground of utility, it is not possible to say, without having considered the material relevant to the appeal before the primary judge (which was not put in evidence before the Court), that the denial of procedural fairness did not deprive the applicant the possibility of a successful outcome on the s 91 appeal: [56]-[57].

R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 359 at 400; Rodger v De Gelder (2011) 80 NSWLR 594; [2011] NSWCA 97 at [88]; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [57]-[60], [104], [131], and [212]; Stead vState Government Insurance Commission (1960) 161 CLR 141 at 145 applied.

Judgment

1. BELL P: I agree with the reasons of, and orders proposed by, Gleeson JA. This was, as his Honour has observed in par 9 of his reasons, a sad case. It should be acknowledged and recorded that the case was argued on the part of all parties with sensitivity and dignity.

2. GLEESON JA: The applicant is the mother of two children who were removed from her care by officers of the Department of Family and Community Services (the Department) on 18 May 2012. The children remain the subject of care orders made by the Children’s Court which allocated parental responsibility for the children to persons other than the applicant (the care proceedings). Those orders were made under the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Care Act). The applicant, being aggrieved by the circumstances in which the children were removed from her care, brought separate proceedings in 2016 claiming damages against, among others, “The Department of Community Services”, and “Gosford Hospital” (the damages proceedings).

3. The applicant, who appeared unrepresented, seeks to challenge two decisions of the District Court, one in the care proceedings, the other in the damages proceedings.

4. First, the applicant seeks leave to appeal against a decision of Judge Gibb made in the District Court on 9 November 2016 dismissing the damages proceedings. The summons seeking leave to appeal was filed on 18 April 2019 (2019/122139) and is well out of time. Accordingly, the applicant requires an extension of time to seek leave to appeal: Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 51.10(2).

5. Second, the applicant seeks judicial review of a decision of Judge Olsson made in the District Court on 22 August 2018 dismissing proceedings by way of an appeal from a decision of the Children’s Court concerning the allocation of parental responsibility for one of her children. The applicant initially filed a notice of appeal (2018/287363) and also a summons seeking leave to appeal (2018/287395) on 17 September 2018, which both purported to challenge the decision of Judge Olsson. The applicant then filed a summons (supervisory jurisdiction) on 12 November 2018 (2018/347455).

6. The applicant acknowledged that the notice of appeal and the summons seeking leave to appeal have been overtaken by the summons seeking judicial review. That concession was properly made. Given that the proceedings in the District Court were by way of an appeal from a decision of the Children’s Court pursuant to s 91 of the Care Act, there is no right of appeal to this Court, but proceedings may be brought by way of judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW): Druett v Director-General of Community Services [2001] NSWCA 126; X v Director General of the Department of Community Services [2001] NSWCA 413 at [24]; Muldoon v Church of England Children’s Homes Burwood (2011) 80 NSWLR 282; [2011] NSWCA 46 at [8]; Colquhoun v District Court of New South Wales [2014] NSWCA 460 at [7]; DC v Secretary, Department of Family and Community Services [2017] NSWCA 225 at [16]. The notice of appeal and summons seeking leave to appeal are not competent and should both be dismissed.

7. Intervention by this Court requires that the applicant establish an error of law on the face of the record in the court below, or jurisdictional error. The “record” includes the originating process, the orders and reasons for judgment: Supreme Court Act, s 69(3) and (4).

8. One recognised form of jurisdictional error is a failure to accord procedural fairness during a hearing: Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [60]. Such a failure is susceptible to correction as jurisdictional error: Re Refugee Review Tribunal; Ex parte HB [2001] HCA 34; (2001) 179 ALR 513 at [10].

9. It should be said immediately that it is sad for all of the affected parties – the applicant, the two children, their respective fathers and their maternal grandparents – that seven years after the removal of the two children from the applicant’s care in 2012, there remains a dispute with respect to what care orders are in the best interests of the children.

Pseudonym and non-publication orders

10. On 28 November 2018, orders were made by the Registrar of the Court of Appeal in the judicial review proceedings, including:

1. that the children the subject of the care proceedings be referred to by the pseudonyms, Michelle and Dora, dispensing with the need for a tutor to be appointed for the two children, and granting leave to separate solicitors to appear in each child’s interest;

2. joining additional parties as respondents to the proceedings in this Court and ordering that certain respondents should be referred to by their initials: AM, the father of Michelle, SH, the father of Dora, and SE and YE, the maternal grandparents of the two children;

3. a non-publication order prohibiting publication that would identify or tend to identify the parties (other than the Secretary, Department of Family and Community Services (the Secretary), and the District Court of New South Wales) except for the purpose of the proper conduct of the proceedings.

Procedural background

11. The applicant is the mother of five children. At the time of the removal of two daughters from the applicant’s care on 18 May 2012, Michelle was aged eight years and Dora was about to turn age two. They were both living at a motel on the Central Coast. The children were removed from the applicant’s care by officers of the Department, exercising power pursuant to s 43(2) of the Care Act, which at that time provided:

43 Removal of children and young persons without warrant

(1)   ...

(2)   If the Director-General or a police officer suspects a person is a child and suspects on reasonable grounds:

(a)   that the person is in need of care and protection, and

(b)   that the person is not subject to the supervision or control of a responsible adult, and

(c)   that the person is living in or habitually frequenting a public place,

the Director-General or police officer may (without the need for any authority other than that conferred by this subsection) remove the person from any public place.

…

12. Section 43(2) has since been amended and the references to the “Director-General” have been replaced by the words “the Secretary”, which term is defined to mean the Secretary of the Department of Family and Community Services: Care Act, s 3.

13. The removal order on 18 May 2012 was signed by a caseworker on behalf of the Chief Executive of the Department (then known as the Department of Human Services). That order stated that the children had been removed because the Chief Executive suspects on reasonable grounds that the children are in need of care and protection, and are not subject to the supervision or control of a responsible adult, and are living in or frequenting a public place.

14. The order further stated:

The children had been homeless for 11 months living in a car or motel rooms. The mother has an untreated medical condition which results in the symptomology of mental illness. Summary of other considerations leading to action is included in the warrant application.

15. Michelle is presently nearly 16 years of age and lives with her father, SM. Dora is now aged nine years and lives with the maternal grandparents. Neither daughter has lived with their mother since 2012.

Children’s Court proceedings at Wyong – 18 May 2012

16. Following the commencement of proceedings by the Director-General (now the Secretary) in the Children’s Court at Wyong on 18 May 2012, the Children’s Court made final orders on 8 August 2013 under s 62 of the Care Act allocating parental responsibility for the children to the Minister for Family and Community Services (the Minister) for a period of six months and upon expiry of the orders, parental responsibility was to be allocated to the maternal grandparents until the children attained the age of 18 years.

District Court appeal from Children’s Court at Wyong – 5 September 2013

17. On 5 September 2013, the applicant filed a summons in the District Court appealing from the orders of the Children’s Court made on 8 August 2013. The applicant sought parental responsibility for the two children. A party only had to be dissatisfied with the order of the Children’s Court to appeal: Care Act, s 91(1). An appeal to the District Court is by way of a new hearing: Care Act, s 91(2).

18. The appeal was heard before the District Court from 3-5 February 2014. On 24 April 2014, Judge North delivered an ex tempore judgment in which he found that there was no realistic possibility of the two children being restored to the applicant and denied restoration of the children to the care of the applicant. However, his Honour allowed the appeal, discharged the orders of the Children’s Court of 8 August 2013 and ordered that Michelle be placed under the sole parental responsibility of the maternal grandparents until she attained the age of 18 years. His Honour further ordered that parental responsibility for Dora be allocated to the maternal grandparents, except for her cultural upbringing, which was to be shared jointly between the maternal grandparents and Dora’s father, SH. His Honour also made various orders for the children to have contact with their respective parents.

Applicant’s claim for damages in District Court – 27 June 2016

19. The applicant filed a statement of claim on 27 June 2016 in the District Court against “The Department of Community Services”, a number of employees of the Department, including a solicitor acting for the Department and a case worker, “Gosford Hospital”, a number of employees of the hospital, including BE, a social worker, and a doctor, and also Michelle’s father, AM, his wife, SM, and another person. The claim by the applicant was for:

(1) Medical negligence (trauma) – Gosford Hospital;

(2) Medical discrimination – Department of Community Services.

and the applicant sought damages of $500,000 for:

(1)   Loss of Income and Financial reunion; and

(2)   Trauma due to stress of related issues outlined on affidavit.

20. The statement of claim contained no allegations (whether of fact or of law) whatsoever. Aside from the description of the claim, and the relief sought, it did not attempt to identify the basis on which that case was advanced.

21. On 20 September 2016, the State of New South Wales (the State) and Central Coast Local Health District filed a notice of motion seeking an order dismissing the proceedings pursuant to UCPR, r 13.4 or an order striking out the statement of claim pursuant to UCPR, r 14.28. BE also filed a motion on 20 September 2016 seeking an order that the proceedings be dismissed pursuant to UCPR, r 13.4.

Decision of Judge Gibb – 9 November 2016

22. On 9 November 2016, Judge Gibb granted leave to the State and the Central Coast Local Health District to intervene, although not formally named as defendants. The applicant acknowledged in this Court that the affidavit referred to in the statement of claim (see [19] above) was not put into evidence by her on the hearing of the application.

23. Judge Gibb found that the statement of claim pleaded no cause of action at all. Her Honour made orders that the proceedings be dismissed as against the State, the Central Coast Local Health District and BE pursuant to UCPR, r 13.4 and that the statement of claim be struck out pursuant to UCPR, r 14.28 for disclosing no cause of action against any legal entity. Her Honour further ordered the applicant pay the costs of the State and Central Coast Local Health District jointly and severally on an indemnity basis and the costs of BE on an indemnity basis.

Care Act, s 90 application by AM – 26 April 2017

24. On 26 April 2017, AM filed an application in the Children’s Court at Woy Woy seeking leave under s 90 of the Care Act to vary the orders made by Judge North on 24 April 2014. AM sought restoration of parental responsibility of Michelle, who had resided in his care with the agreement of the maternal grandparents since January 2016. The Secretary, Michelle and the maternal grandparents supported the application of AM. The applicant opposed the application and care plan.

25. On 14 July 2017, the Children’s Court granted leave to AM to apply to vary the earlier orders made by Judge North. On 1 September 2017, a care plan supporting restoration to AM was filed.

26. Section 90(1) provides that an application for the rescission or variation of a care order may be made with the leave of the Children’s Court. Section 90(2) provides that the Children’s Court may grant leave if it appears that there has been a significant change in any relevant circumstances since the care order was made or last varied. At the time of granting leave to make an application to vary or rescind the care order, the Children’s Court had to consider the matters set out in sub-sections (2A) and (6) of s 90, which provided:

90 Rescission and variation of care orders

…

(2A)   Before granting leave to vary or rescind the care order, the Children’s Court must take the following matters into consideration:

(a)   the nature of the application; and

(b)   the age of the child or young person; and

(c)   the length of time for which the child or young person has been in the care of the present carer; and

(d)   the plans for the child; and

(e)   whether the applicant has an arguable case; and

(f)   matters concerning the care and protection of the child or young person that are identified in:

(i)   a report under section 82, or

(ii)   a report that has been prepared in relation to a review directed by the Children’s Guardian under section 85A or in accordance with section 150.

…

(6)   Before making an order to rescind or vary a care order that places a child or young person under the parental responsibility of the Minister, or that allocates specific aspects of parental responsibility from the Minister to another person, the Children’s Court must take the following matters into consideration:

(a)   the age of the child or young person;

(b)   the wishes of the child or young person and the weight to be given to those wishes;

(c)   the length of time the child or young person has been in the care of the present caregivers;

(d)   the strength of the child’s or young person’s attachments to the birth parents and the present caregivers;

(e)   the capacity of the birth parents to provide an adequate standard of care for the child or young person;

(f)   the risk to the child or young person of psychological harm if present care arrangements are varied or rescinded.

27. Section 90(7) provides:

(7)   If the Children’s Court is satisfied, on an application made to it with respect to a child or young person, that it is appropriate to do so:

(a)   it may, by order, vary or rescind an order for the care and protection of the child or young person, and

(b)   if it rescinds such an order—it may, in accordance with this Chapter, make any one of the orders that it could have made in relation to the child or young person had an application been made to it with respect to the child or young person.

Children’s Court orders – 12 April 2018

28. On 12 April 2018, Magistrate McManus in the Children’s Court delivered an ex tempore judgment finding that she was satisfied that it was appropriate to rescind the orders made by Judge North in the District Court on 24 April 2014. The Magistrate found that there was a realistic possibility of restoration of Michelle to AM, and no realistic possibility of her restoration to the applicant. The Magistrate rescinded the orders of the District Court of 24 April 2014 and allocated parental responsibility for Michelle to AM until she attained 18 years of age.

Care Act applications by the applicant – September and November 2017

29. On 25 September 2017, the applicant filed an application in the Children’s Court at Woy Woy pursuant to s 90 of the Care Act seeking restoration of both children.

30. Shortly thereafter on 7 November 2017, the applicant also filed an appeal to the District Court at Newcastle. While the subject matter of that appeal was not in evidence before this Court, it is common ground that this appeal was dismissed by the District Court at Newcastle on 13 December 2017. The applicant did not seek to challenge that order by way of an application for judicial review.

31. Also on 13 December 2017, the applicant sent an email to the Children’s Court at Woy Woy in relation to her s 90 application stating, “I am withdrawing my application to the Children’s Court”. The applicant further stated in her email that she would not be attending on the listed date of 8 February 2018. When the applicant did not appear on that date, the Children’s Court made an order dismissing the s 90 application. Notice of the order dismissing that application was given to the applicant by the Children’s Court on 20 April 2018.

32. The applicant did not appeal to the District Court against the dismissal by the Children’s Court on 8 February 2018 of her s 90 application within the time permitted for commencing an appeal, namely, 28 days after the material date, being the date on which the decision is pronounced or given: UCPR, r 50.3(1)(a). Nor did the applicant seek an extension of time to appeal: UCPR, rr 50.3(1)(b), (c).

Summons filed in District Court by the applicant – 8 May 2018

33. On 8 May 2018, the applicant filed a summons in the District Court appealing against the orders of the Children’s Court made on 12 April 2018 varying Michelle’s care plan and also purporting to appeal against the orders made by Judge Gibb on 9 November 2016. The applicant joined as defendants, the Director-General of the Department, Central Coast Health District (Gosford Hospital), AM and SE and YE named together as the fourth defendant.

34. The relief sought in the summons is difficult to comprehend. Order 2 sought “[t]hat the proceedings at Woy Woy Children’s Court from 19th June 2017 to the 12th April 2018 be dismissed”. That seems to be a reference to the s 90 application by AM, which was determined by the Children’s Court on 12 April 2018.

35. Order 3 sought “[f]or the orders to remain in place with District Court 21st July 2014 Children & Young Persons (Care and Protection) Act 1998 (“the Act”) and that pursuant to s 86 of the Act the children’s contact arrangements to parents”. Ignoring the incorrect date, that seems to be a reference to the orders made by Judge North on 24 April 2014.

36. Order 4 sought “… [t]hat the parental responsibility for the children [Michelle] and [Dora] be allocated to the mother [the applicant] on (sic) the exclusion of the Department of Family and Community Services, (Wyong CSC) to be dismissed regards the support to father [AM] on his application for restoration to [Michelle]”. Again, that seems to be a reference to the s 90 application by AM in the Children’s Court, albeit that application was only in relation to Michelle.

37. Orders 5 and 6 sought orders against “Central Coast District Health” which seem to be directed to the applicant’s complaint that the children were removed in 2012 because the Area Health Service and the Gosford Hospital gave false information to the Department.

38. Ground 1 of the summons sought, in effect, that parental responsibility for both children be allocated to the applicant. Ground 3 of the summons sought to challenge the decision of Judge Gibb on 9 November 2016 dismissing the damages proceedings brought by the applicant. Ground 4 of the summons sought “pursuit for compensation relief sort (sic) on the claim of professional misconduct & duty care regards to my health, by Department of Family and Community Services (FACs) and Central Coast District Health causing previous and ongoing proceedings”. Again, that seems to be a reference to the damages proceedings which were dismissed by Judge Gibb.

39. On 24 July 2018, the Secretary and Central Coast Local Health District filed a notice of motion in the District Court seeking various orders, including:

1. that the proceedings as they related to the second defendant (Central Coast Local Health District) be dismissed or struck out pursuant to UCPR, rr 13.4 or 14.28;

2. that the proceedings as they related to the child, Dora, be dismissed or struck out pursuant to UCPR, rr 13.4 or 14.28 on the ground, among others, that the order of the Children’s Court at Woy Woy made on 12 April 2018 did not relate to the child, Dora.

40. The Secretary and Central Coast Local Health District did not seek an order that the proceedings be dismissed or struck out insofar as they related to the child, Michelle.

Decision of Judge Olsson – 22 August 2018

41. On the hearing of that motion on 22 August 2018, Judge Olsson made an order, “The summons is dismissed”. In her brief reasons (which appear to have been interrupted by the applicant as they were being delivered), her Honour said that:

“I accept the evidence of Claire Baldwin in the affidavit that she affirmed on 24 July 2018 for all the reasons set out therein, the summons cannot succeed …”.

Her Honour refused the application by Central Coast Local Health District for costs.

42. The transcript of the hearing before Judge Olsson on 22 August 2018 records that after this order was made, the applicant asked:

But what could I do about the rest of my appeal?

A. Application for judicial review – orders of Judge Olsson on 22 August 2018

43. On 6 February 2019, the Registrar of the Court of Appeal made an order striking out that part of the summons filed 12 November 2018 relating to the decision of Judge Gibb on 9 November 2016. The applicant has not sought to review that decision, which was plainly correct.

44. The summons does not contain any meaningful grounds challenging the decision of Judge Olsson. Nor do any grounds appear in the applicant’s supporting affidavits sworn 16 November 2018 and 6 March 2019 or in her Statement of Issues dated 6 February 2019

45. The applicant acknowledged that she did not seek to challenge the dismissal of the proceedings insofar as they related to the Central Coast Local Health District and the child, Dora. That concession was properly made.

46. As regards the Central Coast Local Health District, it was not a proper or necessary party to the s 91 appeal and that appeal was not the appropriate vehicle for the applicant to challenge the order made by Judge Gibb on 9 November 2016. The procedure to challenge the order of Judge Gibb was by way of an application for leave to appeal to this Court, not a further application in the District Court.

47. As regards the child, Dora, the District Court was only exercising power in respect of an appeal from the order of the Children’s Court made on 12 April 2018 and that order only related to the child, Michelle. Accordingly, the applicant’s purported appeal to the District Court, insofar as it related to the child, Dora, was not competent.

48. In oral argument, the applicant submitted that she was denied procedural fairness by the District Court insofar as Judge Olsson had dismissed the proceeding in its entirety, including the s 91 appeal relating to the child, Michelle. This submission picked up and adopted what was common ground in the written submissions of the Secretary and counsel for Michelle, that the Secretary had not, nor had any other respondent to the motion, sought to dismiss the proceedings as it related to the child, Michelle. That is, the applicant was denied a fair hearing of her challenge to the orders of the Children’s Court on 12 April 2018 allocating parental responsibility for Michelle to her father, AM.

Relief where denial of procedural fairness

49. Accepting that the applicant was denied procedural fairness, the applicant and counsel for Michelle both submitted that the s 91 appeal relating to the child, Michelle, should be remitted to the District Court for determination. The Secretary and the maternal grandparents opposed the grant of such relief on discretionary grounds.

50. The well-recognised grounds for withholding relief include “if no useful result could ensue”, that is, on the ground of utility: R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 359 at 400, cited in Rodger v De Gelder (2011) 80 NSWLR 594; [2011] NSWCA 97 at [88]. See also Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 (Aala) at [58] (Gaudron and Gummow JJ).

51. In opposing the grant of relief, the Secretary emphasised that Michelle is at a crucial age of her development, litigation is stressful, particularly for a young person about to turn 16 years when the subject matter concerns with whom she would live. The submission continued that absent any change in Michelle’s views expressed in the Children’s Court, the applicant has no real prospects of success in seeking a care order that Michelle live with her. The Secretary also emphasised that the litigation would be stressful for AM and for the maternal grandparents who will be necessary parties to any hearing of the s 91 appeal in the District Court.

52. SE, the maternal grandfather, supported this submission, pointing to the lengthy history of the proceedings, that Michelle’s views in the Children’s Court were that she wished to remain living with AM and not see the applicant, and that considerable weight ought to be given to her views given her age, that any further proceedings would likely have a psychological impact on the two children.

53. In Stead vState Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 (Stead) at 145, the High Court held that "not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial". That was said in the context of an appeal from a trial judge who had stopped a party from addressing on the topic of a witnesses’ evidence. The High Court held at 149 that all that the appellant needed to show to obtain a new trial was that “the denial of natural justice deprived him of the opportunity of a successful outcome”.

54. The High Court returned to the issue of the effect of a breach of procedural fairness in Aala, in the context of an application for prerogative relief under s 75(v) of the Constitution. While accepting that relief may be refused on the ground of utility, Aala emphasised that where a breach of procedural unfairness is proved, ordinarily the applicant would be entitled to relief and the discretion to refuse relief will not be lightly exercised: at [104] (McHugh J), [131] (Kirby J), [212] (Callinan J). The remarks of McHugh J at [104] are instructive:

Not every breach of the rules of natural justice affects the making of a decision. The decision-maker may have entirely upheld the case for the party adversely affected by the breach; or the decision may have turned on an issue different from that which gave rise to the breach of natural justice. Breach of the rules of natural justice, therefore, does not automatically invalidate a decision adverse to the party affected by the breach. This principle was acknowledged by this Court in Stead v State Government Insurance Commission [citation omitted] when it said that "not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial". Nevertheless, once a breach of natural justice is proved, a court should refuse relief only when it is confident that the breach could not have affected the outcome because "[i]t is no easy task for a court ... to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome".

55. It is not necessary for present purposes to consider the remarks of Gaudron and Gummow JJ in Aala at [57]-[60] that the cases turning upon “trivial” breaches of the requirements of procedural fairness are better understood on other grounds.

56. Although there may well be a powerful argument against any variation of the existing care order with respect to Michelle (assuming that Michelle adheres to her wishes to remain in her father’s care), it is not possible to say, without this Court having considered the material relevant to the appeal before Judge Olsson, including the evidence before the Magistrate in the Children’s Court, and any updating material as to Michelle’s wishes and best interests, that the denial of procedural fairness by the District Court “could have had no bearing on the outcome” of the applicant’s appeal, as it related to the child, Michelle: Stead. None of this material was before the Court. Accordingly, it is not possible to conclude that there is no utility in remitting the proceedings to the District Court to the Children’s Court for determination of the s 91 appeal; cf DC v Secretary, Department of Family and Community Services at [123]-[134].

57. The appropriate relief is to vary the dismissal order of Judge Olsson and remit the s 91 appeal to the District Court for determination according to law as it relates to the care orders with respect to the child, Michelle.

B. Leave to appeal – orders of Judge Gibb on 9 November 2016

58. Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, leave will only be granted concerning matters involving issues of principle, questions of general public importance or involving an injustice which is reasonably clear, in the sense of being more than merely arguable: Jaycar Pty Limited v Lombardo [2011] NSWCA 284 at [46]; Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]; Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28].

Extension of time

59. As indicated, the applicant requires an extension of time for leave to appeal because the summons seeking leave to appeal filed on 18 April 2019 is 29 months out of time.

59. In Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [55], Basten JA (Hodgson and Ipp JJA agreeing at [1] and [17] respectively) referred to four factors relevant to the exercise of the discretion to extend time for an appeal: the length of the delay, any explanation for the delay, any prejudice to the respondent, and whether the applicant for the extension has a fairly arguable appeal. Acknowledging the principles there stated, the Secretary and the Central Coast Local Health District opposed the extension of time on the basis that the applicant did not have a fairly arguable case.

60. Importantly, in Tomko v Palasty (No 2) at [14], Hodgson JA (Ipp JA agreeing), while agreeing with Basten JA, added:

... there may be circumstances where it is appropriate to go further into the merits of the case of a person seeking an indulgence such as this, than to ask whether or not the case is fairly arguable. If such a person has a reasonable explanation of delay and the opponent does not have a strong case of prejudice, then a fairly arguable case is sufficient. However, if the explanation for the delay is less than satisfactory, or if the opponent has a substantial case of prejudice, then it may be relevant that the person seeking the indulgence shows that his or her case has more substantial merit than merely being fairly arguable.

62. As Campbell JA observed in Blackmore v Browne; Kara Kar Holdings Pty Ltd v Blackmore [2011] NSWCA 114 at [19], the statement of Basten JA at [55] in Tomko should be read with the additional remarks of Hodgson JA (Ipp JA agreeing) in mind.

63. In the present case, the length of the delay in seeking leave to appeal – 29 months – is gross and there is simply no evidence at all by the applicant explaining the delay in bringing this application. The applicant has not demonstrated that her case is fairly arguable let alone has she demonstrated that her case has more substantial merit warranting a grant of leave: Tomko v Palasty (No 2) at [14]. An extension of time should be refused for the reasons that follow.

64. The applicant’s summary of argument did not identify any error in the decision of Judge Gibb dismissing the damages proceedings. In oral argument, the applicant submitted that the dismissal order involved a denial of procedural fairness because the applicant was unaware how to draft a pleading, she was uninformed, she was unrepresented and she had done the best without the benefit of legal advice. None of these matters demonstrate error in Judge Gibb’s discretionary decision to dismiss the proceedings on the ground that the statement of claim did not plead a reasonable cause of action.

65. Insofar as the applicant seeks to challenge the indemnity costs order, applications for leave to appeal from the exercise of a discretionary judgment on a matter of practice and procedure require particular caution. As this Court observed in PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [5], discretionary decisions on questions of practice and procedure “engage the strictures against over-ready appellate interference and the correlative need for ‘added restraint’ associated with House v The King (1936) 55 CLR 499 with the consequence that a ‘heavy burden’ lies on an applicant seeking leave to appeal from a discretionary judgment on a question of practice or procedure” (citations omitted). No error of the House v The King type has been identified with respect to the special costs order made by Judge Gibb.

66. The application for an extension of time to seek leave to appeal should be refused.

Grant of leave

67. Further, and in any event, even if an extension of time was granted, leave to appeal should be refused. The proposed appeal does not raise any question of principle or matter of public importance. Nor does it have sufficient prospects to warrant a grant of leave because the applicant has not demonstrated any injustice which is reasonably clear, in the sense of going beyond a merely arguable error.

Costs

68. The Secretary did not seek costs of the notice of appeal or the summons seeking leave to appeal which were both filed on 17 September 2018. Subject to one matter, there is no reason why the costs of the other applications should not follow the event: UCPR, r 42.1.

69. The qualification relates to the judicial review proceedings, in respect of which the Secretary should pay not only the applicant’s costs, but also the costs of Michelle, Dora, SE and YE. This is because, the Secretary, acting reasonably and in accordance with the dictates of the just, quick and cheap determination of the real issues in the proceedings (Civil Procedure Act 2005 (NSW), s 56), should have immediately drawn to Judge Olsson’s attention after the order was made dismissing the summons, that such order was wider than the orders sought. Had the Secretary taken this step, as he should have, it is likely that Judge Olsson would have varied the terms of the order which she had made, so as to permit the applicant to proceed with her s 91 appeal, relating to the child, Michelle.

Orders

70. I propose the following orders:

2018/287363

(1)   Notice of appeal filed 17 September 2018 is dismissed as incompetent.

2018/287395

(1)   Summons seeking leave to appeal filed 17 September 2018 is dismissed as incompetent.

2018/347455

(1)   Vary the order made by Judge Olsson on 22 August 2018 by adding after the words, “The summons is dismissed”, the words:

“except for the applicant’s appeal pursuant to s 91 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) against orders made by the Children’s Court on 12 April 2018 relating to the child, Michelle (the s 91 appeal).

(2) Remit the proceedings to the District Court for determination of the s 91 appeal according to law.

(3)   The Secretary of the Department of Family and Community Services to pay the costs of the applicant, and the costs of Michelle, Dora, and SE and YE in this Court.

2019/122139

(1)   Application for an extension of time to seek leave to appeal is refused.

(2)   Summons seeking leave to appeal filed on 18 April 2019 is dismissed with costs.

71. LEEMING JA: I agree with Gleeson JA.

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Amendments

03 July 2019 - [1] - Typographical error

Decision last updated: 03 July 2019