JLS v Chief Executive of the Department for Child Protection

[2021] SASCA 136

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Civil)

JLS v CHIEF EXECUTIVE OF THE DEPARTMENT FOR CHILD PROTECTION & ORS

[2021] SASCA 136

Judgment of the Honourable President Livesey  (ex tempore)

8 November 2021

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FROM INTERLOCUTORY DECISIONS

The applicant sought to appeal what is described in the Notice of Appeal as an interlocutory order, made by a Magistrate of the Youth Court on 23 September 2021, dismissing the applicant’s counsel on the basis that counsel misled the Court and was involved in an abuse of process. The applicant’s second Notice of Appeal purports to refer the appeal to “a single Judge” of the “Court of Appeal”.

The applicant sought to rely on s 22(2)(b)(iii) Youth Court Act 1993 (SA) (the Act). Sections 3 and 22(2)(b)(iii) of the Act confer the right of appeal against a judgment of a Magistrate of the Youth Court on a single Judge of the Supreme Court.

Held, striking out the Notice of Appeal as incompetent:

1. No order, direction or declaration was made dismissing the applicant’s counsel. This is not a case that comes within s 22(2)(b)(iii) of the Act, as no judgment has been made which comes within s 22(1) of the Act.

2.  The appeal is incompetent because neither a Judge of the General Division nor of the Court of Appeal has jurisdiction to hear this appeal.

3.  The applicant’s Notice of Appeal is struck out pursuant to r 212.5 of the Uniform Civil Rules 2020 (SA).

Uniform Civil Rules 2020 (SA) rr 34.1, 212.5; Youth Court Act 1993 (SA) ss 3, 22, referred to.

JLS v CHIEF EXECUTIVE OF THE DEPARTMENT FOR CHILD PROTECTION & ORS

[2021] SASCA 136

Court of Appeal - Civil

LIVESEY P:

1. The applicant seeks to appeal what is described as an interlocutory order, made by a Magistrate of the Youth Court on 23 September 2021, dismissing the applicant's counsel on the basis that counsel misled the court and was involved in an abuse of process.

2. By describing the matter in that way, I am referring to what is contained in the second Notice of Appeal filed on 15 October 2021.  That Notice of Appeal purports to refer the appeal to a single Judge, but the heading to the Notice specifies that the appeal is made to the Court of Appeal. 

3. The right to appeal a decision of the Youth Court is set out in s 22 of the Youth Court Act 1993 (SA) (the Act) which states:

   (1)    A party to proceedings in the Court may, in accordance with the rules of the appellate court, appeal against any judgment given in the proceedings (including an acquittal on a charge of a summary or indictable offence) but an appeal does not lie against a judgment in committal proceedings.

   (2)    The appeal lies—

   (a)if the judgment is given by the Judge of the Court—

   (i)in the case of an interlocutory judgment—to a single Judge in the General Division of the Supreme Court; or

   (ii)in any other case—to the Court of Appeal; or

   (b)if the judgment is given by a magistrate or judicial registrar—

   (i)in the case of an interlocutory judgment—to the Judge of the Court; or

   (ii)in the case of an action relating to a major indictable offence—to the Court of Appeal; or

   (iii)in any other case—to the Supreme Court constituted of a single Judge; or

   (c)if the judgment (including an interlocutory judgment) is given by a special justice—to a single Judge in the General Division of the Supreme Court.

   (3)    On the appeal, the appellate court may exercise any one or more of the following powers:

   (a)it may confirm, vary or quash the judgment subject to the appeal and, if the court thinks the interests of justice so require, it may vary or quash any other judgment given in the same or related proceedings;

   (b)it may remit the matter for hearing or further hearing;

   (c)it may make any other order (including an order for costs) that may be necessary or desirable in the circumstances.

4. The term “judgment” is defined by s 3 of the Act in a way which includes a “declaration or order”.

5. This case, speaking generally for a moment, concerns allegations made about the applicant's mental health and the removal of her son by the Department for Child Protection (the Department) on 2 June 2021.  That removal was the subject of a habeas corpus application on 9 June 2021, which was dismissed by the Chief Justice on 30 August 2021. The applicant’s son is presently eight years of age.

6. There are other issues involved in the proceedings, including the non‑attendance of the applicant's son at school and what are described as periods of homelessness.  All of these matters are the subject of dispute and contest, and no findings have been made by the Youth Court.

7. The applicant before me relies on s 22(2)(b)(iii) of the Act, and contends that her case comes within the words, “in any other case—to the Supreme Court constituted of a single Judge”. She contends that this is neither an interlocutory judgment, despite what is in the second Notice of Appeal, nor is it, obviously enough, an action relating to a major indictable offence. She contends, in a way which I found very clear and lucid, that her counsel had not misled the court as the Magistrate suggested, and was acting merely in accord with the decision made by the Chief Justice in his reasons for dismissing the habeas corpus application. She has also raised what she describes as corruption, but which I understand to mean her observation of the close working relationship between counsel for the Department and counsel for the child.

8. Counsel for the Department makes two submissions. First, he submits that there was no “judgment” within the meaning of s 22(1) of the Act. Alternatively, he submits that if an order was made, it was clearly “interlocutory” in nature, within the meaning of s 22(2)(b)(i) of the Act, and he relies upon the Record of Outcome as disclosing the orders actually made by the Magistrate. Those orders comprised an order in the nature of an adjournment, leave to the applicant's counsel to withdraw from the file, as well as leave for him to file a written submission. It is clear from the Record of Outcome that the Magistrate encouraged the applicant to retain alternative counsel. No order was made dismissing the applicant’s counsel.

9. In my view, and despite the conclusory nature of the comments made by the Magistrate about what was said to be the improper conduct of counsel, no order, direction or declaration was made about that at the hearing on 23 September 2021. The Magistrate made it clear that she was prepared to receive submissions concerning the conduct of counsel. Accordingly, in my view, this is not a case that comes within s 22(2)(b)(iii) because no judgment has been made which comes within s 22(1).

10. Accordingly, neither a Judge of the General Division, nor of the Court of Appeal, has jurisdiction to hear this appeal.  The appeal is incompetent, and the applicant's Notice of Appeal may be struck out pursuant to rr 34.1 or 212.5 of the Uniform Civil Rules 2020 (SA). Had the appeal purportedly been brought to a single Judge and not the Court of Appeal, it might have been addressed under r 34.1 by a single Judge of the General Division.  Where however an appeal is purportedly made to the Court of Appeal, as in this case, it may be addressed under r 212.5 by a Judge of the Court of Appeal, rather than a Judge of the General Division.

11. The order of the Court is that the second Notice of Appeal dated 15 October 2021 is struck out.

12. Before leaving this case, I should record that it remains open to the applicant to bring whatever application she sees fit to make before the Senior Judge or Magistrate of the Youth Court regarding representation, as soon as she is in a position to do so.  She is also in a position to again seek funding from Legal Services, with the benefit of the discussion during the course of argument this afternoon.