MJL v Chief Executive Officer of the Department for Child Protection - [2010] WASCA 69

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: MJL -v- CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT FOR CHILD PROTECTION [2010] WASCA 69

CORAM: NEWNES JA
MURPHY J

HEARD: 26 MARCH 2010

DELIVERED : 22 APRIL 2010

FILE NO/S: CACV 77 of 2009

BETWEEN: MJL
Appellant
AND
CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT FOR CHILD PROTECTION
First Respondent
KF
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram  :REYNOLDS J
Citation  :CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT FOR CHILD PROTECTION -v- MJL [2009] WACC 5
File No  :CC 4980 of 2006

Catchwords:

Leave to appeal - Interlocutory decision - Whether grounds of appeal have a reasonable prospect of succeeding - Failure to identify error

Legislation:

Children and Community Services Act 2004 (WA), s 28(2), s 38, s 44, s 133(2)(a), s 139, s 155
Children’s Court of Western Australia Act 1988 (WA), s 20(1)(a), s 37(2)(b), s 43, s 43(5), s 43(7)
Criminal Appeals Act 2004 (WA), s 27(2)
Magistrates Court (Civil Proceedings) Rules 2005 (WA), r 29
Supreme Court (Court of Appeal) Rules 2005 (WA), r 32(4), r 43(2)(f)

Result:

Application for leave to amend at large refused
Leave to appeal refused

Category: B

Representation:

Counsel:

Appellant:     In person
First Respondent           :     Mr I A Allen
Second Respondent      :     No appearance

Solicitors:

Appellant:     In person
First Respondent           :     Department for Child Protection
Second Respondent      :     No appearance

Case(s) referred to in judgment(s):

Allmark v Mossensons (a firm) [2006] WASCA 127
Asvar v Binning [2009] WASCA 219
Chief Executive Officer of the Department for Child Protection v MJL [2009] WACC 5
Leeder v The State of Western Australia [2008] WASCA 192
Logan v Camm & Whitson [2008] QSC 255
Macri v Thobaven [2010] WASC 18
Molteleone v The Owners of the Old Soap Factory [2007] WASCA 79
Re Will of Gilbert (dec) (1946) 46 SR (NSW) 318
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

NEWNES JA: I agree with Murphy J.
MURPHY J:

Introduction

This is an application for leave to appeal against a decision of the Children's Court of Western Australia in Protection and Care. The proceedings below concerned an application for a protection order sought by the respondent (the Department) in respect of a child, pursuant to s 44 of the Children and Community Services Act 2004 (WA) (the Act). The applicant for leave to appeal is the father of the child.
In July 2007, at an interlocutory stage in the proceedings below, the court, on the application of the father, and despite the opposition of the Department and the child's mother, ordered interim placement of the child with the father, pursuant to s 133(2)(a) of the Act. At about the same time, the court also ordered that an expert report be prepared pursuant to s 139 of the Act in relation to the parenting of the child. The expert's report became available in May 2008. The expert's report concluded, in effect, that the father, but not the mother, was capable of caring for the child, and that the maternal and paternal grandparents should have fortnightly unsupervised contact with the child.
After reviewing the report, the Department decided not to proceed with the protection application if the father obtained a sole parenting order from the Family Court. The father made that application, and the Family Court made a sole parenting order in his favour in November 2008, although the Department was not notified at that time.
In February 2009, the Department, having been notified of the Family Court order, applied to the court below to discontinue the protection application proceedings. The father then opposed the application for discontinuance. He pursued an application, which he had commenced earlier, to have the protection application proceedings dismissed as frivolous and vexatious under s 155 of the Act. He also sought consequential costs orders of the proceedings.
There was a hearing on 29 April 2009 as to whether the Department should have leave to withdraw the proceedings (as sought by the Department) or whether the proceedings should be dismissed (as sought by the father). The evidence proceeded on affidavits, with no cross‑examination. The father was not legally represented. The learned trial judge delivered reasons on 18 June 2009 whereby he dismissed the

father's application to have the proceedings dismissed, and granted the Department leave to withdraw the protection application.

The judge ordered:
1.The application by the respondent father be dismissed, and
2.The [Department] has leave to withdraw the Protection Application and it is hereby withdrawn.
By the operation of s 20(1)(a) and s 37(2)(b) of Children's Court of Western Australia Act 1988 (WA) (Children's Court Act), the practice and procedure of the court below was relevantly governed by the Magistrates Court (Civil Proceedings) Rules 2005 (WA). Rule 29 of those rules provided:
If a party wants to discontinue the whole or part of a claim made by the party, it must lodge and serve a notice of discontinuance in the approved form.

Section 43 of the Children's Court Act

It is the procedural decision referred to above against which the father seeks leave to appeal, pursuant to s 43 of the Children's Court Act.
Section 43 provides:
43.Appeals to Court of Appeal
[(1)‑(3)deleted]
(4)Subject to this Act, where the Court, when constituted by or so as to include a judge, makes any finding, order or other decision on the hearing of an application under Part 4 or 5 of the Children and Community Services Act 2004 an appeal may be made to the Court of Appeal against the finding, order or other decision by -
(a)the CEO as defined in section 3 of the Children and Community Services Act 2004;
(b)the parent or guardian of the child in relation to whom the application was made;
(c)the child in relation to whom the application was made; or
(d)the person by whom the application was made.
(5)An appeal under subsection (4) must be commenced and conducted in accordance with rules of court made by the Supreme Court.
(6)An appeal under subsection (4) cannot be commenced later than 21 days after the date of the judge's finding, order or other decision unless the Court of Appeal orders otherwise.
(7)The leave of the Court of Appeal is required for each ground of appeal in an appeal under subsection (4).
(8)In an appeal under subsection (4), the Court of Appeal ‑
(a)may affirm, vary or set aside the judge's finding, order or other decision;
(b)may make any finding, order or other decision that the judge could have made;
(c)if it sets aside the judge's finding, order or other decision, may order the application concerned be dealt with again.

Section 155 of the Act

As noted above, the decision below involved determining whether the proceedings should be withdrawn, or dismissed as vexatious under s 155 of the Act. Section 155 provided:
155.Frivolous or vexatious proceedings
(1)At any time in the course of protection proceedings the Court may, if it is satisfied that the proceedings are frivolous or vexatious -
(a)dismiss the proceedings;
(b)make any order as to costs that it considers appropriate; and
(c)on the application of a party, order that the person who instituted the proceedings cannot, without the leave of the Court, institute protection proceedings of the kind or kinds specified in the order.
(2)An order made under subsection (1)(c) has effect despite any other provision of this Part.
(3)The Court may vary or discharge an order made under subsection (1)(c).

The approach of the judge below and the nature of his decision

The learned judge's approach to the disposition of the competing applications before him is set out in his reasons for judgment, Chief Executive Officer of the Department for Child Protection v MJL [2009] WACC 5 [40] ‑ [42]:
There is an inherent power in every Court to stay and dismiss actions or applications which are frivolous and vexatious and an abuse of the process of the Court. The Court is concerned to ensure that its processes are used properly, honestly and in good faith and it will summarily prevent its litigation procedures from being used vexatiously or oppressively. The Concise Oxford Dictionary 8th Edition defines frivolous to mean 'paltry, trifling, trumpery, lacking seriousness, given to trifling and silly'. Vexatious in the context of law is defined to mean 'not have insufficient grounds for action and seeking only to annoy the defendant'.
It is clear from the structure and wording of s 155(1) that before the Court can proceed to dismiss the proceedings and award costs it must first consider and be satisfied that the proceedings are frivolous or alternatively vexatious. When carrying out those considerations the Court should give each of those terms their ordinary meaning and apply each of them in turn to the particular circumstances of the proceedings.
It should be noted that the words 'At any time in the course of the protection proceedings' are provided at the very beginning of s 155(1). Therefore when considering and deciding the respondent father's application I propose to breakdown the timeline of the proceedings into four parts and move along the timeline and consider whether or not at what I regard as key points in time it was frivolous or vexatious to start and thereafter continue with the proceedings.
As best I understand it, there is no allegation in the proposed appeal that the learned judge failed to identify the correct test as to the meaning of 'frivolous or vexatious' within the meaning of s 155 of the Act. The test applied by the judge is, in substance, the same as that referred to by this court in Samuelsv The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [11]:
An action is frivolous if it is obviously unsustainable and an abuse of the process of the court (Young v Holloway [1895] P 87 at 90). An action may for the same reason be characterised as vexatious (Peruvian Guano Co v Bockwoldt [1883] 23 Ch D 225 at 230). The expression has been taken to comprehend 'a claim that is so obviously untenable that it cannot possibly succeed' (Burton v The President, &c, of the Shire of Bairnsdale (1908) 7 CLR 76 at 92) and one in which there is no serious question to be tried (Federico's Restaurant Pty Ltd v Warwick Entertainment Centre Pty Ltd (1995) 18 ACSR 702 at 706). In Mnyirrinna v McIntosh [2003] WASCA 305, Barker J held that 'vexatious' in the context of s 187(1) included a ground which depended on an untenable or groundless factual allegation.
Having examined in detail the conduct of the litigation through each stage of the proceedings, and found that the proceedings were properly commenced and continued, the judge concluded at [83] ‑ [84]:
The necessary question which arises from all of this in the context of the application by the respondent father pursuant to s 155(1) is whether there was a child protection issue that warranted the Protection Application proceedings being kept alive until Family Court orders were made in favour of the respondent father. In my view the short answer to that question is yes. I note that this is the course of action recommended in the Cohen Report. There is evidence in the material before the Court that PH made a threat to a friend of the respondent mother that if the respondent mother did not withdraw a violence restraining order against him then he would make it impossible for the respondent father and the respondent mother to get custody of [the child]. It also seems that the respondent father was concerned about the respondent mother and PH getting together and also taking [the child] from him. All of that clearly gave rise to a protection issue that warranted the continuation of the Protection Application until the Family Court made orders in favour of the respondent father which protected not only the respondent father's position but also and importantly that of [the child].
Given the combination of all of these circumstances I am of the view that it could not be properly concluded that at anytime during this final part of the proceedings they were frivolous or vexatious within the ordinary meaning of those terms. Indeed it is again my view that the continuation of the proceedings to this end was the proper course.
The order to give leave to discontinue, and the order to dismiss the father's application was, in each case, in my view, an interlocutory decision. There was no actual, or even deemed, dismissal of the protection application and there was no final determination on the merits: Allmark v Mossensons (a firm) [2006] WASCA 127 [23] ‑ [24]; Macri v Thobaven [2010] WASC 18 [18] ‑ [19]; Logan v Camm & Whitson [2008] QSC 255 [32] ‑ [35].

The grounds of appeal and orders sought

The father filed grounds of appeal containing 372 grounds. If leave to appeal on a ground or grounds is allowed, and the appeal is ultimately successful, the father seeks the following 24 orders:
1.A decision that the proceedings were subject to section 155 of the CCSA The Childrens [sic] and Communities Services Act 2004.
2.The protection of 155 (1) (c) of the CCSA
3.An order as to 155(1)(b) as to costs including a settlement date, the costs must reflect that the CEO made me stop work and projects to focus all of my resources on this. Costs compensation, remuneration and damages. The costs to reflect the losses to my business and developments I was working on. So that my child and I can start off where we should have been had this not occurred at least.
4.Compensation for my children and I.
5.A decision made as to the proceedings of Feb 6 2007 being a miscarriage of justice. A decision made as to the matter being subject to section 155 at that point in time.
6.For the courts to make a direction to the correct authority to see the CCSA amended to see that this does not happen again.
7.An order to be made to put remedies into the CCSA and avenues of prosecution for non compliance by the CEO.
8.The Court make an order that the CEO pay for [PH] to be declared a vexatious litigant relating to myself. If I so require.
9.An order made that the CEO pay me the costs associated with the allegations made by PH during the course of proceedings.
10.A decision made as to whether the CEO has a responsibility of duty of due diligence to check facts that are in question before putting them to the court.
11.A decision made as to whether or not DCP legal have a duty of due diligence to check facts before putting them to the courts, especially when in possession of contrary information.
12.A decision whether or not they failed in a duty of due diligence.
13.An order that the DCP officer that lives in my street ... stop telling my neighbors [sic] details of the case and to stop her from asking them to enliven people report on me.
14.An order made for a writ of Mandamus to make the police accept reports about this matter and collateral issues.
15.An order to make the unnamed police officer that is supposed to be abiding by the undertaking made in 2005 to abide by the undertaking or face dismissal.
16.A decision as to whether the CEO engaged in mesa fidence. Working in bad faith.
17.An order of costs and damages relating to the hearing being brought forward on Feb 6 2009. Section 25 subsection 9 of the magistrates law act 2004 should cover this.
18.A decision made as to the Peaty review being incorrect about the CEO working unbiased and in the best interest of the child, considering the intended placements and the abuse [the child] suffered.
19.A decision made as to whether the CEO was working in the best interest of the child.
20.A decision made as to the CEO working in good faith IE compliance with the act, the CCSA.
21.A decision whether the CEO failed in their duty of care by a) by not placing [the child] with me sooner than when I won in court .
22.B) Failing in the duty of care by not getting [the child] to hospital in reasonable time for her broken arm c) not having placed her with proper assessed carers.
23.A decision on, if the CEO failed in their duty of care to [the child], by keeping the proceedings continuing with no cogent evidence and the use of fabricated evidence contrary to what my lawyer an officer of the courts put to the CEO. Considering the broken arm issue.
24.A decision on the matter of the proceedings restricting my income causing our financial demise, not being in her best interest. The fact the CEO should have conceded much earlier.
At the hearing of the application, the father, in effect, sought leave to amend at large the grounds of appeal, and handed up an incomplete draft upon which he said he was still working. There have been significant delays already in the prosecution of this application. The delays occasioned to date, and the absence of a minute of proposed amended grounds militate strongly against granting leave to amend at this stage. Accordingly, I would refuse the application for leave to amend.

The principles for application for leave to appeal

A tight rein should be kept on appeals against decisions on matters of practice and procedure which do not affect substantive rights: Re Will of Gilbert (dec) (1946) 46 SR (NSW) 318, 323.
In order to succeed in an appeal from a discretionary decision, an appellant must establish that the primary judge has expressly or impliedly made a material error of fact or law. Failure to give adequate weight or to give too much weight to a relevant consideration does not give rise to a relevant error unless the failure really amounts to a failure to exercise the discretion actually entrusted to the court: Molteleone v The Owners of the Old Soap Factory [2007] WASCA 79 [36].
In relation to interlocutory decisions, in Allmark v Mossensons [26], Pullin JA (Buss JA agreeing) said:
Leave will usually only be granted where the decision below was wrong, or at least attended with sufficient doubt to justify the granting of leave, and if in addition substantial injustice would be done by leaving the decision unreversed. See Wing Luck Foods v Lay Choo Lim [1989] WAR 358 at 360 and Friday v Australian National Airlines Commission; unreported; FCt SCt of WA; Library No 8502; 24 September 1990; Stanley v Layne Christensen [2006] WASCA 56 at [15] and [58]. These are not rules but guidelines. The Court has a residual discretion to do justice in any case requiring leave even if the guidelines are not satisfied. See Sanderson v Metropolitan (Perth) Passenger Transport Trust unreported; FCt SCt of WA; Library No 950185; 22 March 1995.
In this case, s 43(7) of the Children's Court Act also requires consideration.
It may be observed that s 43 of the Children's Court Act, unlike s 27(2) of the Criminal Appeals Act 2004 (WA), does not contain express reference to leave in respect of a ground being refused 'unless [the Court of Appeal] is satisfied the ground has a reasonable prospect of succeeding'. Nevertheless, s 43(5) provides that an appeal is to be conducted in accordance with the rules of court. Part 5 r 43(2)(f) and r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Appeal Rules) provide that the court has jurisdiction to strike out any ground of appeal that does not have a reasonable prospect of succeeding, or dismiss an appeal where none of the grounds of appeal have a reasonable prospect of succeeding.
I would see no reason to distinguish the meaning of that phrase where it appears in pt 5 r 43(2)(f) and r 43(2)(g)(i) of the Appeal Rules from its meaning in s 27(2) of the Criminal Appeals Act 2004. In that regard, the construction of the words 'does not have a reasonable prospect of succeeding' is to be approached in the same manner as outlined by the court in Samuels [52] ‑ [60].

Accordingly, in considering each (valid) ground in respect of which leave to appeal is sought to be granted in this case, the court may properly have regard to whether it has a reasonable prospect of succeeding.
In the case of an appeal from an interlocutory decision under s 43 of the Children's Court Act, it is difficult to conceive that if each of the grounds of appeal does not have a reasonable prospect of succeeding, the decision below could, nevertheless, be regarded as 'wrong, or at least attended with sufficient doubt to justify the granting of leave': cf Allmark v Mossensons [26], referred to above.

Disposition of the application for leave to appeal

I would dismiss the application for leave to appeal for the following reasons.
First, the grounds of appeal are discursive, frequently difficult to follow and lacking any proper identification of alleged error by the judge, and are thus contrary to the requirements of pt 5 r 32(4) of the Appeal Rules. In this regard, I would respectfully adopt the observations of Owen JA (with whom Miller & Newnes JJA agreed) in Asvar v Binning [2009] WASCA 219 [37]:
While, by virtue of the rules, an appeal to this court is by way of rehearing, the task of the court is nonetheless to discern error. The fact that a litigant may be disappointed with the result does not mean that the appeal court is able to intervene. An appellant must demonstrate that there has been error of a recognised genre that falls to be corrected and which entitles the appellant to the orders or relief that she or he seeks. This explains why the grounds of appeal are a critical part of the process because they are the vehicle which guide the review process. The failure of parties properly to attend to grounds of appeal is by no means limited to self-represented litigants. In this regard it is as well to bear in mind what Kirby J said in Gipp v R [1998] HCA 21; (1998) 194 CLR 106 [58]:
'The jurisdiction of a court of appeal ordinarily depends on the grounds of appeal that can be legally raised in support of the appeal. Under the common law system of justice, jurisdiction is the authority to decide issues between parties. In the case of an appellate court, that authority is governed by the issues raised in the notice of appeal and any notice of contention relied on to support the judgment against which the appeal is brought. In the absence of a special statutory regime, a notice of appeal that does not specify a ground of appeal is invalid and the appellate court in which it is "filed" has no authority to determine any issue affecting the parties.' (authorities omitted)
The difficulties of conducting an appeal with respect to the grounds sought to be relied on by the father are magnified by their prolixity. I have indicated that I would not give leave to amend at large now. On this basis alone, I would decline leave to appeal, although my decision is not confined to that basis.
Secondly, insofar as some broad themes can be discerned from the grounds of appeal, they raise matters which, in my view, have no reasonable prospect of succeeding.
The first broad theme is to the effect that when dealing with the competing applications, the judge failed to have regard to the weight of the evidence, in that the affidavits relied on by the father contained matters which the judge failed properly to take into account, or to which he failed to give sufficient weight. The father's complaints in this regard fail, in my view, to address the relevant test, as set out in Leeder v The State of Western Australia [2008] WASCA 192 [84]:
As the appeal turns substantially on the learned trial judge's findings of fact, it must also be recognised that the onus which lies on an appellant who appeals against findings of fact goes beyond merely showing that an alternative finding was available on the facts. The appellant must show that a factual error was made by the learned trial judge. As the Full Federal Court said in Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359:
'The court must be satisfied that the judgment of the trial judge is erroneous and it may be so satisfied if it reaches the conclusion that the trial judge failed to draw inferences that should have been drawn from the facts established by the evidence. The court is unlikely to be satisfied if all that is shown is that the trial judge made a choice between competing inferences, being a choice the court may not have been inclined to make but not a choice the trial judge should not have made.'
The second broad theme is that the Department, by its affidavits, committed perjury and deliberately misled the judge. This is, to some degree, the obverse of the first theme, insofar as it is said that the alleged falsity of the Department's evidence is demonstrated by the evidence of the father. The allegation is a serious one. There was no cross‑examination on the affidavits at the hearing. These matters indicate that the father has no reasonable prospect of succeeding on this point.
The next broad theme, allied to the last one, is that the Department was motivated by bias against the father, and in favour of the mother, for whose benefit the application was allegedly brought. Evidence of this is said to be drawn from a statement by the Department at one point that the application was made to be fair to the mother (although there is no indication of context), and from the evidence relied on by the father. In my view, the matters referred to do not indicate a reasonable prospect of success, particularly absent any cross‑examination of the Department's officers.
The next broad theme which appears in the papers is that the judge was biased. Again, the allegation of bias is a grave one. It is made after the judge found adversely against the father. There is nothing to indicate that there is any proper basis for this allegation.
The next theme is, in effect, a repetition of the submission which the judge records and deals with at [49] ‑ [50] of his reasons for judgment, in relation to s 38 of the Act. I see no error in the judge's reasons in relation to the proper construction and application of the Act in that regard.
Next, there is an allegation that the Department had 'insufficient' grounds to commence the proceedings, in particular having regard to s 28(2) of the Act. The allegations of 'insufficiency' do not appear to me adequately to engage the test required to be applied under s 155: see [13] above. In any event, the judge made findings of fact concerning whether the application was frivolous or vexatious when it was commenced: reasons [52] ‑ [53]. It is not clear whether these specific findings of fact are challenged, but if and to the extent that they are, there is nothing in the grounds or submissions which would indicate that this point has any reasonable prospect of succeeding.
Finally, it is apparent from the orders sought that the purpose of the proposed appeal, from the father's point of view, is to ventilate perceived grievances against the Department in its management and decision‑making processes both generally and specifically in relation to the child the subject of the proceedings. The relief sought also involves claims for compensation, allegations of breach of duty, complaints about the police and complaints about the disposition of earlier interlocutory hearings in February 2007 and February 2009. There is no evidence of any legal costs actually incurred in the proceedings by the father, in circumstances where the only relief, relevantly available under s 155, which he at least arguably seeks, is an order for costs. Accordingly, not only is there no relevant prejudice demonstrated if the decision is left unreversed, but it is also apparent that the proposed appeal is to be used for purposes foreign to the true nature of an appeal from such an interlocutory order.
Whilst, no doubt from the father's point of view, he sees the proposed appeal as an avenue to vindicate a variety of concerns which he presumably genuinely holds, an appeal from the judge's decision cannot be the occasion for the kind of review he envisages, and for the making of the wide‑ranging orders which he seeks.
For these reasons, I would decline leave to appeal.