JLM & Anor v Millar & Ors; PTC v Millar

[1992] HCATrans 334

..

. •

• -..... JA

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M57 of 1992

B e t w e e n -

JLM & ANOR

Applicants

and

MICHAEL MILLAR, JOHN PATTERSON

& JOHN MYERS

Respondents

Office of the Registry

Melbourne No M58 of 1992

B e t w e e n -

PTC

Applicant

and

MICHAEL MILLAR, JOHN PATTERSON

JLM 1 13/11/92

& JOHN MYERS

Respondents

Applications for special leave

to appeal

MASON CJ
BRENNAN J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 13 NOVEMBER 1992, AT 10.08 AM

Copyright in the High Court of Australia

MR R. MERKEL, QC: If the Court pleases, I appear with my

learned friend, MR J.B.R. BEACH, on behalf of the

applicants. (instructed by the Director of Legal

Aid Commission (Victoria))

MR F.X COSTIGAN, QC: If the Court pleases, I appear with my

learned friend, MR I.R.L. FRECKELTON, for the

respondents. (instructed by the Victorian

Government Solicitor)

MASON CJ:  Mr Merkel, before you proceed, I should say that

the Deputy Registrar of the Court has received

letters from the Registrar of the Childrens Court

advising that Mr Myers, the third-named respondent,

does not wish to be represented at the hearing of

these matters and will abide by any order of the

Court.

MR MERKEL: If the Court pleases. In our submission, the

matters raised by the present application cover

three basic issues on which special leave is

sought. The first relates to what, in our

submission, will be a great injustice to the 81

children and the 16 families if the proceedings

proceed as presently formulated to a joint hearing

of all 81 protection applications together.

second concerns the principles to be applied by a The

court when joinder is sought of different cases

because of some commonality of interest or of

subject-matter.	And we say that principle is one
of general application.	The third issue relates to

the power of the Childrens Court to hear separate protection applications jointly in the absence of the consent of the parties. If I could deal with

our submissions in respect of each of those matters

in the order that I have indicated to Your Honours.

BRENNAN J: It must be difficult to do so, though, is it

not, because you really have to start with the

section 82 problem, do you not?

JLM 2 13/11/92

MASON CJ:  The jurisdiction point, the power point.

MR MERKEL:  Yes, Your Honours. The first two points assume

power, and the third -

MASON CJ:  Is it not logical to deal with the power point

first?

MR MERKEL:  Yes, Your Honours, if I can do that first. In

our submission, the Full Court correctly accepted

that there were no statutory provisions or rules of

court which permitted the joinder of separate

applications but Their Honours - and this was dealt

with in His Honour Mr Justice Brooking's judgment -

found that the power to order joinder of

proceedings arose as part of the inherent power of

a court or a tribunal to order its own procedures.

MASON CJ:	Why is he not right on that point?
MR MERKEL:	We would submit, Your Honours, that there is a

difference between the exercise of power to order
one's procedures within and in respect of a

proceeding to the power of the court to, in effect,

join different proceedings. May I say this, that

the courts have acted upon the principle in the

past that there is no such power. Can I just give

Your Honours two references. In Cameron v McBain,

(1948) VLR 245, a decision of Sir Edmund Herring

in the Victorian Supreme Court, His Honour held

that prior to the formulation of the rules

permitting consolidation under the Judicature Act

that there was no power in a court to order that

two or more actions against the same defendant - or
where the same plaintiff brought actions against

two or more defendants, could be joined without

consent of the parties concerned.

In the criminal jurisdiction the House of

Lords in Crane v Director of Public Prosecutions,

(1921) 2 AC 299, found that the joinder of

indictments in the one proceeding was a nullity and
as a result, even today under the presentment	-
rules, one may have parties joined within a
presentment subject to the rules but one may not
join different presentments at the one trial. Now,
we say the question then arises as to whether there
is anything in the statute that would suggest that
there is power to join different proceedings as
opposed to power to regulate within a proceeding
how it is to be conducted.

When Your Honours go to the Act - we have a

folder of cases we will be referring to briefly,

and of the Act, and if we could hand those up - - -

MASON CJ: This is a special leave application, Mr Merkel.

JLM 13/11/92

MR MERKEL:  Yes, Your Honours. Do Your Honours have the

Children and Young Persons Act?

MASON CJ: Yes.

MR MERKEL:	When one goes to the Act itself the relevant provisions, in our submission, make it clear that
it would be very hard to discern any implication
that different protection applications could be
heard together.  The protection application
jurisdiction arises under section 63 - - -
McHUGH J:	Mr Merkel, I do not have a copy of the Act.
MR MERKEL:	If we could hand up a copy to Your Honour. The

jurisdiction arises in the circumstances set out in

section 63 and Your Honours will see that the

scheme under division 2, dealing with children in

need of protection, is child specific and

anticipates children being the subject of their own

separate application. Upon the grounds being

believed to exist in section 63, there is a

notification for a protective intervener in respect

of the child, section 64(1), and then one goes to

section 68 which results in an action by the

protective intervener in respect of the child, and

then under section 68(2) the child's parents are to

be given a copy of the application. Under

sections 86 and 87 the jurisdiction of the court,
again dealing specifically with the child the
subject of the application is set out, where the
court is required to have regard to specific
matters concerning the child. In section 85 there
are particular forms of orders that may be made in
respect of a child.

If one goes to the more general provisions of the Act such as section lS(l)(b) conferring

jurisdiction on the Family Division of the court, that is page 14 of the Act, Your Honours will see that the jurisdiction given to the division of the

Childrens Court is:

to hear and determine an application for -

(b) a finding that a child is in need of
protection;

Section 18(l)(a)(i) deals with the obligation of
the court to ensure that in any proceeding

concerning a child the proceeding is comprehensible

to the child. The reason I take Your Honours to

that statutory scheme is that there is nowhere to

be discerned in it the notion that different

applications in respect of different children are

JLM 13/11/92

to be heard jointly. That is a separate

question -

MASON CJ: That was accepted by the Full Court, was it not?

MR MERKEL:  That was accepted by the Full Court,

Your Honours, and that is why we say that the authorities hitherto have accepted that in the

civil and the criminal jurisdiction one cannot join

proceedings and that powers of the kind that

Their Honours were referring to in the Full Court,

to order one's processes and procedures in relation
to a proceeding, do not go as far as to deal with

the question of joinder of different proceedings

and that is why the rules of court invariably

specifically authorize and deal with the
circumstances in which consolidation of different

matters can occur.

BRENNAN J:  What is meant by joinder and consolidation?

What is proposed here is that the 40 common

witnesses should not have to give evidence 80

times.

MR MERKEL:  There are two problems there, Your Honour. The

first is that convenience cannot overcome the

problem of lack of power and - - -

BRENNAN J: Is it a case of joinder? Is it a case of

joinder or consolidation, as you are using that.

MR MERKEL: It is the joint hearing, Your Honour, but that

is the same principle that underlies the

authorities that do not allow joint hearings or

consolidation. They are just different branches

under the one head of power.

BRENNAN J:  What do you say about section 82(l)(b):

must proceed without regard to legal forms; which authorizes the court to order its processes

MR MERKEL:  We say, Your Honour, that that is a procedure

in respect of the matter before it but does not

allow it to order its processes in respect of

different matters to suit its convenience. We say

that such a provision, in our submission, does not

confer the jurisdiction that was not conferred
previously on courts or tribunals, other than by

express authorization in the statute.

There is a fundamental right underlying a

matter such as the present. That takes me to the

foundation of the other arguments and that is that

given the nature of the jurisdiction to be

exercised, we say prima facie there must be a right

inherent in each child and his or her parents to

JLM 13/11/92

have their application dealt with separately, so we

say that the nature of the subject-matter would

make one reluctant to say that there could be a

joinder or a power of joinder without the rules of

court - and there are provisions for rules to be

made to specifically permit it. We say it would be

reading too much into the general provision of section 82 to override that fundamental right.

There is a second answer I give to Your Honour Mr Justice Brennan's question and it is this, and

in a sense all three heads of our submission are

interrelated. But the reason why there are 40 so-

called generalized witnesses really stems from the

fundamental premise and complaint that this is, in

effect, a class action, an action against a

religious group seeking protection orders by reason

only of the fact of membership of a religious

group. We say that that approach in itself is

somewhat alien or foreign to the nature of the

jurisdiction conferred under this Act. We say, in

effect, the State argument is seeking to pull

itself up by its own bootstraps. They present a

case on what we say ultimately is a misconceived

basis. They then say, we are going to call 40

generalized witnesses to talk about this religious

group and its predecessors and its origins, and

they are all going to have to be called together.

But can I take Your Honours to the most

obvious case. Some of the children - I think the

youngest was some two months of age - when the

subject of the first protection application against

that child. It is very hard to see how, in that

child's case, being heard with a 15 year old child

and the ranges throughout, can permit the same

evidentiary admissibility of what may have happened

concerning the forerunners to the religious group

ordifferent forms of it back in the 1970s and

1980s. Now, the two month old child might say, I

have a right, my upbringing with my parent, I am
not interested and my parent may not be interested

and may have had nothing to do with any of these
earlier groups.	We say that in effect the

convenience point really gives rise to the wrong

questions being asked. What we were about to

indicate to Your Honours is that there must be a

lot of force in what Lord Atkin says in General

Medical Council v Spackman when His Lordship said

that "convenience and justice are often not on

speaking terms", and we say that that is precisely

what has occurred in the present case.

When one goes to the nature of this

jurisdiction, particularly having regard to what

this Court said in Lieschke's case, that this is a

jurisdiction exercised solely for the benefit of

JLM 6 13/11/92

the child, not a public interest element extraneous

to the interest of the child. When one starts with

that fundamental principle under the Act and the

jurisdiction to be exercised, having regard to the

very serious consequences that flow from the

exercises in a particular case such as this, we say

that the Court should be very reluctant to read

into those general provisions in section 82 a power

which the courts have otherwise lacked in the civil

and criminal jurisdiction. We say the prima facie

position should be that nothing less than express

enactment would authorize that specific power.

McHUGH J:  Mr Merkel, have you read Munday v Gill in this

Court, 44 CLR?

MR MERKEL:  I confess not, Your Honour.

McHUGH J: It supports your argument to some extent, in fact

it might be said to a considerable extent, unless

you can draw a distinction between criminal proceedings by way of information and these

proceedings.

MR MERKEL:  I am indebted to Your Honour, because we would

submit that the decision of the House of Lords in

Crane's case accepts the same underlying principle.

McHUGH J:	Crane is referred to in Munday v Gill.
MR MERKEL:	I am sorry I did not have that, Your Honour, but

both principles have been accepted for a very long

period of time and we say that express enactment

would be required, or rules of court made under the

rule-making power, would be required to deal with

it otherwise. Now, there is provision, and it

raises a separate point, in the one application to

maybe join two children, for example in the one

family situation. That may be a different case but

that is not the case we are concerned with here.

MASON CJ: But Mr Merkel, for my part, I would be disposed,

unless you can persuade me to the contrary, that a

distinction ought to be drawn between criminal

cases and proceedings in a Childrens Court of this

kind.

MR MERKEL:  We would say, Your Honour, that the distinction,

if anything, would be a distinction in favour of

our argument, not against it, because having regard

to the way in which this Court approached this

question in Lieschke's case, with the interest of

the child being paramount in a jurisdiction being

exercised solely in the interest of the child, then

we would submit that those circumstances would be

all the more so in favour of no power, subject to

JLM 13/11/92

how the rules deal with it, to join different

applications in the one case.

MASON CJ:  But why, when the paramount consideration under

the statute is the protection of the children?

MR MERKEL:  We would say, Your Honour, the protection of the

child the subject of each application, taken to the
circumstances of the present case, arising in the

context of an allegation that the parental

upbringing of that child - not membership of a

religious group, but the parental upbringing of

that child - is likely to cause that child

psychological and emotional harm and Lieschke's

case, Your Honour, focuses so strongly as it does

on the interception by the State of the

parental/child relationship, we would say a

fortiori would raise the same kind of public policy

considerations, but even more directly, than one

would find in the criminal jurisdiction. But we

would submit, Your Honours, that what is accepted

in the criminal jurisdiction also has been accepted

in the civil jurisdiction. So it would be ironic

that in the sui generis jurisdiction

Mr Justice Wilson talked of in this area in

Lieschke's case, some lesser protection and some

wider power were given because, Your Honours, it is

not said to be in the interests of the child that
there be joinder; it is said to be in the interests

of a number of witnesses, it is said to be in the

interests of the way in which the State wishes to

present its case against the religious group, and

we say that - - -

MASON CJ: But ultimately it is said to be in the interests

of the protection of the children that these

matters can be determined together, rather than

that you should have 40 separate proceedings, or 80

separate proceedings in which witnesses are called

time and time again.

MR MERKEL: But, with respect, Your Honour has made an

assumption there that we say is one that cannot

properly be drawn. Merely because the State frame

particulars in a generalized form as they have

done, we say that cannot possibly be right to

justify, in effect, saying this is how the

jurisdiction of the Act should be exercised in this

way. All they have put forward are particulars

and, in effect, the starting point we say is a

wrong one. May I give Your Honours the best

example. This matter has been now alive within the

department for some six months, notwithstanding
requests to do so and notwithstanding the latest

set of particulars that were, I think, delivered up

to the Court some few days ago, not one particular

JLM 13/11/92

is alleged against any one parent or against any

one child.

The reason for that is the State has wilfully desisted from seeking to exercise what we say is

its duty or power to identify what it is that is

the specific allegation sought to be raised against

a particular parent and a particular child. If

there were separation by reference to family unit

or by reference to some identification of

circumstances that warrant the allegations or set
out the facts, there is not the slightest doubt

that they would come forward, and if they have

nothing specific against each family or against

many of the children then, Your Honours, we say the

matter should not proceed against them. We say

that is the underlying basis or misconception which

this case has raised and, in effect, it is becoming

self-perpetuating because the consequence of the

finding by the Full Court of the existence of the

power, compounded by the Full Court's enunciation

of the test to be applied in a case of joinder, in

effect authorize a State to seek to exercise powers

under the Act not by reference to a specific
parental child or family relationship or situation

but by reference to a religious or ·other group

which is said to have practices, beliefs which are

outside the mainstream of those that are regarded
by the State as acceptable. That is the underlying

course that this case has been destined to follow

and it has now created that precedent. There can

be no escaping from it because that, we say, is the

authorization for this generalized case, as it has

been so quaintly put against us, without

specificity.

It has never been suggested that there cannot

be specificity but there has been a desisting from

specificity because the minute any specific matter

is raised against a family, then that family would

be entitled to say, look, this is said specifically

about us: we want to deal with it separately.	We
say that that is why the three points are

interlinked. I accept power must stand or fall on the proper construction of the Act, but the reason

why we say there should be the prima facie

presumption in favour of nothing less than clear

and explicit provision in the Act or rules to be

dealing with the situation is that a fundamental

right is taken away from each child and parent by

the matters being heard this way.

I emphasize, Your Honours, that there is a

regulation in a rule-making power which can be

exercised - - -

MASON CJ: Yes, you mentioned that.

JLM 9 13/11/92

MR MERKEL:  So that there is no need to read into provisions

such as section 82 power to override well-

established principles. But we say, just in

conclusion on the power point, that the principles
that govern the existence, and the reason for the

criminal jurisdiction and the civil apply to this

one, and we would say that that issue, of itself,

is a matter of some importance, that if these

powers are to be conferred on tribunals and

jurisdictions, they should not come in by a side

wind by sections such as section 82, they should

come in specifically.

McHUGH J:  In Munday v Gill Mr Justice Dixon said that:

It may be conceded that defendants

charged upon different informations for

summary offences are entitled to separate

hearings, but these cases show that in

England, Victoria and New Zealand it has long

been considered that failure to give effect to

this right does not go to the jurisdiction of

the justices, nor to the validity of the

conviction, but is an irregularity only which

the defendants may waive.

MR MERKEL:  Thank you, Your Honour, and that is why

Sir Edmund Herring said that the same applies in

the civil jurisdiction but is able to be the

subject of consent.	So that it can proceed by
consent.	They are the submissions we would put on

the question of power.

McHUGH J: These are civil proceedings.

MR MERKEL:  Your Honour, Mr Justice Wilson in Lieschke's

case said that they are really neither civil or

criminal, they are proceedings sui generis, and I

would not have a quarrel with that, but we say

because of their nature the principles that govern

both would apply a fortiori to our situation.

MASON CJ: Next point.
MR MERKEL:	The next question is the question of the

injustice that arises from what is proposed.	I
have taken Your Honours to the nature of the

jurisdiction exercised. We say that the range of the children the subject of these applications is

from some two months up to 15 years. We say that

given the differing ages, individuality,

intellectual abilities, character, education,

parental and family requirements varying as they

do, we would submit that the correct principle to

be adopted by the court must be a prima facie

right, if we are wrong on power, to have their

cases heard separately, but if there is a power, it

JLM 10 13/11/92

would be in terms of the House of Lords in the

Norfolk case which Lord Roskill stated - and if I

can hand that up to Your Honours - Lord Roskill

stated the power, and it is important because - can

I just hand up what His Lordship said in Chief

Constable of Norfolk v Clayton, (1983) 2 AC 473 -

can I hand up a folder of cases. I will just be

referring to one or two of them and very briefly -

His Lordship, whose judgment was concurred in by

Their Lordships sitting in the house, can I take

you to page 489 at paragraph F, and what

His Lordship stated in the last five lines at

paragraph Fis that the:

House should now encourage the adoption of

rules of procedure and practice which

encourage the better attainment of justice,
which includes the interests of the

prosecution as well as of defendants -

this is an information case

so long as the necessary safeguards are

maintained to prevent any risk of injustice to

defendants.

And His Lordship stated the test to be applied at page 492, paragraph D to E, saying that the

jurisdiction to join information should only be

exercised:

when in the justices' view the facts are

sufficiently closely connected to justify this

course and there is no risk of injustice to

defendants by its adoption. Accordingly the

justices should always ask themselves whether

it would be fair and just to the defendant or

defendants to allow a joint trial. Only if

the answer is clearly in the affirmative

should they order joint trial in the absence

of consent by or on behalf of the defendant.

--

Mr Justice Brooking stated that that was wrong.

That appears at line 6 on page 124 of the

application book. His Honour's judgment was

concurred in and agreed to by Their Honours. At

line 6 or 7 His Honour said this cannot be right

and His Honour enunciated a test at page 125, line

10, which in effect required an applicant for

relief in circumstances of the present applicants

to establish that there will in fact be a violation

of the requirements of justice. His Honour
departed and rejected the question of the test by

reference to the risk of justice and His Honour put

what one can only say is an unprecedented hurdle in

the path of an applicant for relief in this area at

lines 10 to 15 of page 125, and lines 10 to 15 at

JLM 11 13/11/92

126, repeated by His Honour and applied by His

Honour to a conclusion that the applicants could not establish the requisite criterion.

We say that the risk of injustice, of course,

must be real, not illusory, but in the present case

it is certainly real. Can I just indicate that it

arises from two sets of circumstances, if I can

just briefly identify those for Your Honours.	The
first derives from what were referred to by my

learned friend on behalf of the State in the case

as a "generalized case", setting out generalized

assertions without any specificity of the facts or

basis upon which those assertions are made in both

sets of particulars and, ultimately, we find in the

latest set of particulars it is said that the

upbringing of the children is inconsistent with the

principles of the United Nations Convention on the

Rights of the Child.

The question of our assault on the particulars arises in this way. We say that Your Honours in

John's case, that is John v Attorney-General of the

State of New South Wales, 163 CLR 508, particularly in the joint judgment at 519, identified the

requirement of specificity in respect of

particulars. Mr Justice Jacobs, in the New South

Wales Supreme Court in Baker v Gough, (1963)

NSWR 1345, which is the third case in our folder,

if I can take Your Honours briefly to it, at page

1360, His Honour talking of the need for

specificity in respect of particulars where matters

alleged relate to character, conduct or personality

said, at line 45:

However, if the case is one where matters of

character, conduct or personality are

involved, I think that grounds must be related

to the individual who is called upon to show

cause and if that is not done then there is a

failure of the opportunity provided for in the

Ordinance.

That is a fair hearing.	We say this is clearly
such a case.	We have also, in case 4, Etherton's

case, a decision of Mr Justice Hunt, where there

were allegations of incompetence in respect of the

duties of office of a public servant, His Honour
discussed generalized particulars that are not in
principle distinguishable from those relied on in

the present case, and just reading the headnote,

His Honour said that the:

officer ..... is entitled to particulars of the

specific acts or omissions relied upon to

establish that charge. In relation to each

such act or omission alleged, he is entitled

JLM 12 13/11/92

to have identified for him whether he is

alleged to have been negligent, careless,

inefficient or incompetent. It is not

sufficient merely to be told of the charge

itself and the general nature of the case

against him -

and we say that is precisely what occurred, and

His Honour said that in discussion of the

principles it is appropriate for prerogative relied

to be granted in such circumstances.

We would submit that the particulars would

give rise to a case of denial of the opportunity to

know the case that each has to meet in a single

case, but it becomes compounded when one has a

joint hearing.

Can I now move to the second aspect of the

problem which is the problem raised by 81

protection applications being heard together.	An
example of the problems arising in such

circumstances, in far more modest circumstances, is
considered by Mr Justice Walters in case No 5 in

Gardiner v Land Agents Board, (1976) 12 SASR 459. His Honour was called upon to consider whether an

inquiry into three agents who had been involved in

two separate transactions and had all been

subjected to generalized allegations could be said

to have been held fairly, even although they went
into the inquiry without complaining about the fact that they were being dealt with together. The kind

of problems His Honour identified - can I just take

Your Honours to the problem about the general

nature of the charges at page 471 at point 7 where

His Honour said, in respect of the general

allegations:

It seems to me, therefore, that the nature of

the allegation made against each appellant

could hardly be said to be fair, sufficient or

specific. It was an allegation in vague and

things, but as to which one could only guess.	general terms, which could have involved many
"It is possible that the (appellant] implicated might guess at what was intended, but he might guess wrongly -

Now the matter proceeded to a joint hearing and

what His Honour said at page 474, after referring

to Lord Atkin at the top of the page, "convenience

and justice are often not on speaking terms", then

in the first paragraph His Honour said:

Prima facie, it is irregular to intermix

one set of proceedings with another, or to

interject into the evidence in one set of

13   13/11/92

proceedings evidence which is admissible only

in the other. To do so could lead to a result

that evidence relevant to one charge has not

been excluded in relation to the other. And

it would not be right "for a tribunal without

the consent of the parties to decide case A on

the evidence given in case B. That would be

an unreasonable procedure, and the hearing

would be ill-conducted" ..... Thus it seems to

me that where a matter of inquiry is virtually

something of a quasi-criminal nature, for

which serious sanctions may be imposed, it

becomes all the more necessary that utmost
care be taken in order to ensure that no
prejudice is caused to one person by the
introduction of evidence which is clearly

inadmissible against him, and, more

especially, by the reception adversely to him

of hearsay; all the more so in the face of

objection taken at the hearing.

Now, His Honour at pages 479 to 480 stated

His Honour's conclusions. At the bottom of

page 479 His Honour said:

It might be suggested that one should have

sufficient confidence in the members of the

Board to lead one to say that on matters as to which they were crucial and real issues of

fact, they would have put out of their minds

anything in the nature of hearsay, having no

probative value, and that they would also have
discriminated between the evidence admissible

against one appellant and the evidence

admissible against another. But as I see it,

there was a positive danger that members of

the Board might have been unconsciously

affected by hearsay which had no probative

value, and by evidence which was inadmissible

against an individual appellant. To say the

least, I am left in a position of genuine

doubt whether that factor may have contributed

to the decision adverse to the appellants.

His Honour enunciated a test at point 8, and this

is after the event. His Honour said:

in the result there was a real risk of a

substantial miscarriage of justice to the

appellants. It is not for me to speculate as

to what would have happened -

Now, we have set out in our appeal book, at

pages 160 to 162, the problems of the joint hearing

and can I just, in summarizing under two headings

the two fundamental bases upon which we say there

is the serious or real risk of injustice, the

JLM 14 13/11/92

first is what we would call the oppression or

swamping effect of proceedings of this kind being

conducted in this way, the generalized case without

any ability on each of the individual children or

their counsel or their parents to know to what

extent they have to meet what is being put, and the
oppression of a hearing of 81 children - they are
required to be there and understand, if they are

able to - and parents for some six, nine months, or

even longer, to go through this hearing allegations

against their parents in respect of their
upbringing, in respect of the friends, in respect
of the families they live with. There is a general

effect of swamping and oppression.

But can I go to the more specific. We say

that it is impossible to conduct such a case

fairly. When evidence is tendered against one, how

do they know how it is tendered against others.
There is no way of evidentiary objection. There is

no way of the magistrate at the end of the day

segregating in his mind what is permissible to be

looked at against one as opposed to another. The

overall prejudice of the decision for one child or

his or her parent to have to give evidence in

advance of their case, but to be cross-examined to

the detriment of the case of another child or the

parents of another child, a situation that could

not arise in the context of a one family case or an

individual child case. We say that as the case

goes on, it is compounded by the generalized nature

of the particulars because objections to the

evidence, as a practical matter, are impossible

because they will not be upheld, because nothing

can be shown on these particulars to be irrelevant.

So at the end of the day, the hearing is to be

conducted with children going into evidence, not

having an ability to make a "no case" submission in

relation to them in a real or practical sense, not

knowing what allegations they have to meet; we say

it is so broad that even conflicts of interest -
and there are only, I think, three sets of	;
counsel - sorry, there is one set of counsel
authorized for all the children and two for the
parents, so there will be three sets of counsel altogether - conflicts must be inevitable. We say that if there was specificity, these matters could be dealt with. And that is why the courts for so
long have required the specificity that we say is
absent in the present case.

BRENNAN J:  Mr Merkel, perhaps you can correct the

impression that I have had, but I had rather

thought that the case that was being made was that
the parents or those having custody of the children

and being charged with their upbringing were all

JLM 15 13/11/92

parties to an arrangement, to put it no more

specifically, that children should be brought up in a specific manner, being the manner outlined in the

particulars, and that that manner was one which

justified a finding that any child who is subjected

to the regime should be subject to a protection

order. Is that the case against you?

MR MERKEL:  Your Honour, we say that that is putting it

somewhat more highly, Your Honour, than, in fact,

it is presented as. Your Honour has said there was

an arrangement. Unless I have missed something, we

find those words lacking, Your Honour. What we

find is an allegation that by reason, and by reason

alone, of membership of a religious group certain

consequences are alleged.

BRENNAN J: But is it not by reason of that membership that

it is said that they share this view as to the way

in which the children should be brought up?

MR MERKEL: 

Your Honour, with respect, if a specific

allegation was made against a parent that said that
that parent has subscribed to and is party to what

Your Honour described as an arrangement in this

context and implements it in respect of their

children, you may have something that starts to

resemble the specificity with which a parent can

deal. But, Your Honour, if you look at the

particulars, the sect is identified by name but

nothing else. There is nothing in the nature,

Your Honour, of what the arrangement or what the

sect is constituted by, what its beliefs and

practices are.  What is asserted, Your Honours, are

the outcome of unidentified beliefs or practices.

It is a statement by assertion of an end result,

Your Honours.

Dealing head-on with what Your Honour says, it

would be a very different situation if what was

spelt out was what is involved in membership of the

religious group. by reference to a name and it is that absence of But this is a group defined only	any specificity, Your Honour, that makes it a case
which we say becomes a precedent for not alleging
something against a parent. We could understand a
case that said to a particular parent, "By your
membership of this group, you practise and believe A, B, C, D and E, that you bring up your children
in accordance with that particular practice which
is a doctrine of the religion and, as a result,
those children are subjected to that conduct and
suffer psychological or emotional harm." But we
say, with the greatest of respect to the pleadings here, the first and second set of particulars do not touch upon that kind of issue and that is why we say they fall afoul.

JLM 16 13/11/92

BRENNAN J: The particulars, as such, were not attacked, were

they?

MR MERKEL:	They were, Your Honour. What happened before the magistrate - and this is very clear in the
transcript of the hearing before him - that there
was an assumption by counsel for the State parties and the magistrate that all that had to be done was
to fix a hearing date and the hearing date was
fixed some weeks hence. Counsel then, for the
children, got up and said that, "But you've assumed
there will be a joint hearing." Then there was
argument, Your Honour, about two matters. But
Your Honour can see at 314 what occurred was that
all counsel said, "You can't possibly allow this
matter to proceed on these particulars." At the very opening of the matter - - -

BRENNAN J: Will you just look at page 138 to page 139, the

judgment of Mr Justice Byrne. The way I read this

is that - leaving aside the way in which you can

parse and analyse particulars in a suit at law - in

this case the magistrate said, "It is clear enough

to anybody who wants to read this with a beneficial

eye what the allegations are" and as I read the

whole of this judgment the way in which I put it to

you earlier is the way in which the court has

apparently understood what those particulars are

saying. Here, His Honour is saying, "Well, counsel

has said they are not attacking the particulars as

such but they are trying to derive some forensic

advantage out of the breadth and non-specificity of

them."

MR MERKEL:  No, Your Honour. We say that - can I take

Your Honour to how it arose at page 314? We say

that only Mr Justice Nathan really got to the stage

of saying, "Look, stripped of social welfarees?", I

think His Honour said, "you can really understand

what they are saying." We say that the tactical

and forensic advantage was said in relation to a

challenge to legal professional privilege taken to
cross-examination of the solicitor for the State	:
who gave evidence. That was a different point but
the problem of the inadequacies of the particulars,
Your Honour, was the very first matter raised on
the joint hearing application before the
magistrate, and that is at page 314.

McHUGH J: That is page 45 of the book.

MR MERKEL:  Sorry, page 45. Thank you, Your Honour.

Mr Morrish, who was appearing for the children,

after raising the submission, at line 28 raised the

question of the particulars and then the two

matters then proceeded. At line 20 at page 315

there was an attack on the particulars and then at

JLM 17 13/11/92

page 50, Your Honours, at lines 5 to 10, there was

the requirement that again challenged the

particulars saying, "You could not set this down

for a joint hearing on these particulars"; then

counsel for one of the other families, at line 16

at page 50, said:

that CSV should be required to specify each

fact, act, matter -

relied upon. And that was resisted by counsel for

the State parties, and the magistrate then refused

to order any further particulars and ordered the

joint hearing.

Now, we say that Their Honours, with respect,

were wrong if they concluded that these particulars

in a case such as the present can be read and seen

to meet what Your Honour Mr Justice Brennan said as

laying down an identification of the practices,

beliefs and so forth of the group, which would

enable each parent to identify with specificity,

"What is it that I am said to be doing in respect

of my child and its upbringing" rather than the

generalized assertions that appear.

MASON CJ: But, Mr Merkel, I must say for my part, I have

very great difficulty in seeing that this is a

matter that this Court should take on. I can

understand that the question whether the Childrens

Court has power to direct a joint hearing is a

question of principle which should attract the

attention of this Court. I can understand, to some

extent, that if there has been a departure from

established principle in exercising a discretion to

order a joint hearing, that may, in appropriate circumstances, be a matter for this Court. But

here you are asking us to look at an examination of

all the facts in this case with a view to

determining whether or not what has occurred

results in a denial of natural justice. Now, that

does not seem to me to be the kind of task that is

appropriate for this Court to discharge.

MR MERKEL:  May I say this, Your Honour: I have addressed

Your Honours on the question of power.	On the
question of principle, I have addressed

Your Honours on the Norfolk principle and its

rejection by Mr Justice Brooking and an enunciation

of a test that shows you have to show that in fact

it will work prejudice - actual prejudice.

MASON CJ: There is no need to repeat that.

MR MERKEL:  We say those two matters warrant the grant of

special leave. The third matter, Your Honour, is

that - and maybe I have put it too strongly - there

JLM 18 13/11/92

is not a factual investigation required.	This
application was made to the magistrate on	the basis
of these particulars and these protection
applications.

MASON CJ:  I was not saying that a factual investigation was

required. What I was saying was it is not

appropriate for us to look at all the facts with a

view to determining whether or not a joint hearing

would result in some denial of natural justice.

MR MERKEL:	Your Honour, may I say this: we put it on the question of power; we put it on the question of a
principle - - -

MASON CJ: Yes, I follow those two points.

MR MERKEL:  - - - and we say that - in effect, I use the

injustice argument, Your Honour, to say that the

Court's time would not be wasted by looking at

these matters because the underlying basis of the

allegations are not a case where the risk of

injustice is real .or illusory. But we would say

that those are the grounds .on which we say it is

appropriate for this Court to grant special leave.

We finally just mention - it is of relevance, of course - that the refusal of special leave would

result in this case commencing, I think within one

week or so, and we say the human element is also

one that we would submit the Court can have regard

to in the discretionary way in which it may

approach the question of special leave. If

Your Honours please.

MASON CJ:  Thank you. The Court will take a short

adjournment in order to consider what course it

will take in this matter.

AT 10.56 AM SHORT ADJOURNMENT .:

UPON RESUMING AT 11.07 AM:

MASON CJ:  The Court need not trouble you, Mr Costigan.

The applicants seek to raise three points in

the proposed appeals. The first is that the

Childrens Court had no power to order a joint

hearing of the child protection applications. In our view, the appeal on this point would not have

sufficient prospects of success to warrant the

JLM 19 13/11/92

grant of special leave to appeal, particularly

having regard to section 82 of the Children and

Young Persons Act 1989 (Viet.).

The second and third points go to the exercise

by the magistrate of the power to direct a joint

hearing of at least part of a number of child

protection applications. The applicants submit

that the orders made will result in a denial of
natural justice. In relation to this aspect of the
case, we are firmly of the opinion that in complex
cases - and this is one - involving the protection

and welfare of young children, it is inappropriate

that this Court should grant special leave to

appeal to review interlocutory orders made by

magistrates, the more so when to do so would result

in delay and fragmentation of the proceedings.

The application for special leave to appeal is

therefore refused.

AT 11.08 AM THE MATTER WAS ADJOURNED SINE DIE

--

JLM 20 13/11/92