Mr and Mrs X v Secretary to the Department of Human Services
[2003] VSC 140
•12 May 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 8654 of 2002
NOTE: Restrictions on publication imposed by s.26 of the Children and Young Persons Act 1989.
| MRS X | Plaintiff |
| v | |
| SECRETARY TO THE DEPARTMENT OF HUMAN SERVICES | Firstnamed Defendant |
| COUNTY COURT OF VICTORIA | Secondnamed Defendant |
No. 8656 of 2002
| MR X | Plaintiff |
| v | |
| SECRETARY TO THE DEPARTMENT OF HUMAN SERVICES | Firstnamed Defendant |
| COUNTY COURT OF VICTORIA | Secondnamed Defendant |
| MRS X | Thirdnamed Defendant |
---
JUDGE: | GILLARD J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 24 April 2003 | |
DATE OF JUDGMENT: | 12 May 2003 | |
CASE MAY BE CITED AS: | Mr and Mrs X v Secretary to the Department of Human Services and Anor | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 140 | Revised 16 May 2003 Revised 18 September 2003 |
---
JUDICIAL REVIEW – Order 56 - County Court decision and orders on appeal from Children’s Court – Nature and effect of appeal – Alleged errors of jurisdiction and on face of the record – Effect on appeal was to increase the period of a protection order – Alleged denial of natural justice – Effect of s.86(1AA) of Magistrates' Court Act 1989 on increase of period – No grounds for relief.
---
APPEARANCES: | Counsel | Solicitors |
| For Mrs X | Ms L. Bolkas | Aitken Walker & Strachan |
| For Mr X | Mr G. Nash Q.C. | Access Law |
| For Secretary to the Department of Human Services | Ms S. Buchanan | Court Advocacy Unit (Department of Human Services) |
TABLE OF CONTENTS
Parties................................................................................................................................................... 2
Proceeding in the Children’s Court................................................................................................ 3
County Court Appeals...................................................................................................................... 4
Judicial Review................................................................................................................................... 6
Nature of the Appeal....................................................................................................................... 12
Effect of the Orders Made.............................................................................................................. 17
Only Appropriate Order................................................................................................................. 18
Mr X’s Grounds................................................................................................................................ 20
A. Correctness of Order................................................................................................................ 21
B. Error Considering Supervision Order.................................................................................. 21
C. Consideration of s.86(2)........................................................................................................... 23
Conclusion with respect to grounds............................................................................................. 24
Alleged denial of natural justice................................................................................................... 24
Conclusion......................................................................................................................................... 28
HIS HONOUR:
This is the return of a summons in two proceedings instituted by originating motion seeking judicial review, pursuant to Order 56 of the Rules of Court, of decisions and orders made by her Honour Judge Cohen of the County Court of Victoria. The learned County Court judge heard an appeal by each plaintiff from orders made by a magistrate of the Children’s Court sitting at Melbourne on 31 January 2002. The learned judge made orders on the appeal. Each plaintiff is dissatisfied with the orders made and seeks judicial review of the orders made. Each instituted a separate proceeding in this Court, and both proceedings were heard together.
Parties
The plaintiff, Mrs X, was married to the other plaintiff, Mr X. Mr and Mrs X are the parents of two children. The children are a daughter, A, born 21 January 1987, now 16 years of age, and a son, B, born 4 November 1989, and now aged 13 years. Mr and Mrs X separated in late 1991 and were divorced in 1994. The children lived with their mother after the separation and divorce. Mr X has had considerable contact with the children since the separation and saw them most days.
The children were, on 30 June 2001, taken into the care of the Secretary to the Department of Human Services (“the Department”) pursuant to an interim accommodation order made pursuant to s.110 of the Children and Young Persons Act 1989 (“the Act”).
Mr and Mrs X are the plaintiffs in each of the two proceedings before this court. In the proceeding brought by Mr X, Mrs X is joined as a third defendant.
The Secretary to the Department of Human Services is the first defendant in both proceedings.
The Secretary to the Department of Human Services has power under the Act to obtain guardianship and custody of a child. It also has important responsibilities under the Act.
The second defendant in both proceedings is the County Court of Victoria. The court filed an appearance but in accordance with the usual practice, informed the court that it would not take part in the hearing and would abide by the decision of this court.[1] As noted, Mrs X is joined as the third defendant to the originating motion of her former husband.
[1]See R v Australian Broadcasting Tribunal, ex parte, Hardiman and Ors (1980) 144 CLR 13 at 35.
Proceeding in the Children’s Court
The Children’s Court of Victoria was established by the Act. See s.8(1). The President of the court is a County Court judge and the court comprises the President, Magistrates and Registrars. The court sits in two divisions, namely, the family division and the criminal division.
The two children were taken into the Department’s care on an interim accommodation order on 30 June 2001.
An application was made by the Department seeking an order pursuant to Division 6 of Part 3 of the Act that guardianship of each child be granted to the Secretary on the ground that each child was in need of protection. The application came on before Mr L.W. Hill M and on 31 January 2002, Mr Hill made orders that each child be placed in the guardianship of the Department for a period of 12 months from that date. See ss.84, 85 and 106.
A Guardianship to Secretary order grants custody and guardianship (see ss. 4 and 5) of the child to the Department to the exclusion of all other persons and remains in force for a period, not exceeding two years, specified in the order. See s.106(1) of the Act. Section 84 gives jurisdiction to the Children’s Court of Victoria to make an order if the court finds that a child is in need of protection. A child is in need of protection if any of the grounds set out in s.63 are established. Before the learned magistrate, the parents conceded that each child was in need of protection. The basis for the finding that A was in need of protection was pursuant to s.63(e) and (f). In respect to B, the finding was pursuant to s.63(e). Under s.63(e), if a child has or is likely to suffer emotional and psychological harm resulting or likely to result in significant harm, and the parents have not or are unlikely to protect the child from harm, the child is in need of protection. Section 63(f) deals with the situation where a child’s physical development or health has or is likely to be significantly harmed and the parents in effect have failed to take steps to deal with the problem, for example, by providing medical care.
As stated, the parents conceded before the learned magistrate that each child was in need of protection. The magistrate made an order in relation to each child for a period of 12 months.
Each parent appealed to the County Court pursuant to s.116(1). As parents, Mr and Mrs X were entitled to appeal as of right. See s.116(1)(e) and 116(2)(b).
County Court Appeals
The appeals came on before her Honour Judge Cohen on 12 August 2002 and concluded on 20 September 2002. The hearing took 19 days. Counsel appeared for each of the parents and the Department. The boy, B, was also represented by counsel. The learned County Court judge reserved her decision and on 18 October 2002, she published her reasons and ordered that the orders of the Children’s Court made on 31 January 2002 be set aside and in their place, she ordered guardianship to the Secretary for ten months from the date of the order, namely, 18 October 2002. On the appeal, the parents contested the issue of whether each child was in need of protection. They were entitled to do this despite not contesting the issue in the Children’s Court. See s.116(6)(c) and s.85 of the Magistrates' Court Act 1989. The judge held that A was a child in need of protection under s.63(e) and (f) of the Act, and in respect of B, she found that he was a child in need of protection under s.63(e) of the Act.
No application was made for a stay of the operation of the orders made by the Children’s Court on 31 January 2002 and accordingly, the orders continued to operate throughout 2002 (see s.116(6A)), eventually being set aside on 18 October 2002. See s.86 of the Magistrates' Court Act 1989. If the parents had not appealed the original orders, they would have expired at the end of 12 months, namely, 30 January 2003. There is power for the Department to make a further application for protection (see s.107) and it was asserted by Ms Buchanan, who appeared for the Department before me, that such an application would have been made. In light of the judge’s findings, the probabilities are that there would have been an extension of the period. The parents complain that by setting aside the Children’s Court orders and making a new order of guardianship for a period of ten months, the effect of the appeal was to increase the original period of the guardianship from 12 months to a period of approximately 19 months. Complaint is made that at no stage during the course of the appeal was any suggestion made by any party or the court that an order could be made having the effect of extending the period. It is contended that the failure to warn of the possibility the period would be extended constituted a denial of natural justice.
It was also contended that the learned judge was in error by increasing the overall period of the guardianship order, and should have, in the exercise of her discretion, backdated the order to the date when the Children’s Court made the orders.
At no stage during the course of the appeal proceeding were any submissions made to the learned judge as to the date when the order should operate. After the learned judge had published her reasons, no complaint was made to her concerning the effect of the orders that she proposed and eventually made.
Under Order 56 of the Rules of this court, any application for judicial review must be made within 60 days after the date of the orders. See Rule 56.02(1) and (2). Order 56 requires the plaintiff to state the grounds upon which the relief is sought. See Order 56.01(4). Neither origination motion mentioned a denial of natural justice or error by the learned judge that she in effect extended the period of the original order without giving notice to the parties. This tends to support the conclusion that the complaint of error and failure to accord natural justice was an afterthought. It would have been open to the parties to have raised the question with the learned judge when she published her reasons and prior to the order being entered in the records of the court. Nothing was said at that time.
The appeal to the County Court was pursuant to s.116 of the Act. Sub-division (1) of Division 4 of Part 4 and Schedule 6 of the Magistrates’ Court Act 1989 apply to the appeal to the County Court. See s.116(6). There are a number of sections of the sub‑division which do not apply, namely, ss.83, 84, 87 and 90; clauses 3, 4 and 8 of Schedule 6 also do not apply. There is no right of appeal from orders of a County Court judge hearing an appeal under the Act from the Children’s Court. Accordingly, the only avenue open to each plaintiff is to challenge the decision‑making process and orders made, by way of common law judicial review.
Judicial Review
Mr and Mrs X in their respective proceeding, seek an order in the nature of certiorari quashing the orders made in the County Court appeals. This court has jurisdiction to grant prerogative writ-type orders in respect of County Court proceedings and orders. See The King v Foster ex parte Isaacs[2] and R v Judge Dutton Briant ex parte Abbey National Building Society.[3]
[2][1941] VR 77.
[3][1957] 2 QB 497.
The common law jurisdiction of this court to review decisions and orders of inferior courts is subject to the procedure set out in Order 56 of the Rules of Court.
The jurisdiction of the court to review decisions and orders of inferior courts and tribunals is limited.
The jurisdiction is supervisory and does not entitle this court to canvass matters that it would on an appeal. In a judicial review, the court is exercising its common law jurisdiction. The jurisdiction is different to an appeal. An appeal is the creature of statute. See Fox v Perry.[4]
[4][2003] HCA 22 at para 20.
The judicial review procedure is concerned with jurisdiction and the legality of what was done by the court or tribunal, and is not concerned with the merits of the decision under review. This is to be contrasted with an appeal, where the question usually is whether the decision is right or wrong, whereas the question on a judicial review is whether the decision is made within jurisdiction and in accordance with the law.
Judicial review is not concerned with whether the decision was fair or correct.
Order 56 is concerned with procedure. It abolishes the remedies in the nature of the old prerogative writs but nevertheless preserves the jurisdiction of the court to make prerogative writ-type orders. It is clear that the Rules do not affect the common law jurisdiction of the court, and it is equally clear that this court has jurisdiction to make an order in the form similar to the old prerogative writ of certiorari, namely, quashing the decision under review.
The scope of the jurisdiction was recently discussed by the High Court in Craig v South Australia.[5] In a joint judgment the court said -
“Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal, or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of an impugned order or decision upon one or more of a number of distinct established grounds: most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, or fraud, and error of law on the face of the record. Where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it. In contrast, where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to ‘the record’ of the inferior court or tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record.”
(Emphases added).
[5](1994) 184 CLR 163 at 175-6.
In Chief Constable of North Wales Police v Evans,[6] Lord Brightman, at p.1173, said –
“Judicial review is concerned, not with the decision, but with the decision‑making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power.”
[6](1982) 1 WLR 1155.
In R v District Court; ex parte White,[7] Windeyer J said at p.655 –
“We do not sit in this court to weigh the evidence and decide whether or not the applicant should be exempt from military service. That decision has been committed by Parliament to a magistrate, with an appeal to a court of review constituted by a District Court or Supreme Court Judge. The court of review has given its decision. Parliament has said that its decision is ‘final and conclusive’. It is not for us to say whether it was right or wrong. Nevertheless the applicant seeking to bring the case before us, alleging an error of law which it is claimed entitles him to an order either for certiorari or prohibition …
I am not disposed to a narrow view of the scope of either certiorari or prohibition or of the power of this court to use these writs and also mandamus to ensure that administrative tribunals exercising functions under Commonwealth law proceed according to law and keep within the law. But we must not use these writs to give an appeal on the facts.”
(Emphasis added).
[7](1966) 116 CLR 644.
In my opinion, the words of Sir Victor Windeyer are apposite to the present case. The parents have a right of appeal to a County Court Judge from an adverse order made by the Children’s Court. Parliament has entrusted their appeal to a County Court Judge. They have no right of appeal thereafter. The only avenue open to them is to establish that the learned County Court Judge made an error in jurisdiction or in the decision‑making process, or that there is some other recognised ground justifying the exercise of the supervisory jurisdiction of this court.
The High Court in Craig’s case, supra, at p.176, identified the most important established grounds, namely, jurisdictional error, failing to observe some applicable requirement of procedural fairness, fraud and error of law on the face of the record.
But the court is not concerned with the correctness of the decision by the learned judge, whether it be a question of fact or law.
This court is not concerned with examining whether in fact the judge made the right decision or whether she misapplied some principle of law, but is concerned with ensuring that she acted within jurisdiction and that in performing her decision‑making process, she complied with the law.
The limited nature of the jurisdiction was stated by the High Court in Craig’s case, supra, at p.176 et seq, where the court drew a distinction between tribunals and inferior courts. See particularly pp.177-9. After giving examples of jurisdictional error by a tribunal, the court said at pp.179-80 –
“In contrast, the ordinary jurisdiction of a court of law encompasses authority to decide questions of law as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available, and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely on determining such a question will not ordinarily involve jurisdictional error.”
(Emphases added).
It is to be observed that the High Court was guarded in stating the principles as general propositions. However, the observations are indeed compelling in a motion such as the present. The rationale for the supervisory jurisdiction is that inferior courts must, in exercising their decision‑making process, act within jurisdiction and in accordance with the law and principles of procedural fairness. But the supervisory jurisdiction is more limited in respect to inferior courts compared with administrative tribunals and is not an appeal.
Sometimes there is controversy about what constitutes the record in cases where certiorari is sought to quash an order on the ground of error on the face of the record. The Rules do require, as did the common law, the production of the record. The County Court record was adduced in evidence.
The general rule of what constitutes the record of an inferior court is the initiating document, pleadings, if any, and the record of the court evidencing the outcome.
By reason of s.10 of the Administrative Law Act 1974, the reasons for the decision form a part of the record. See Thompson v Judge Byrne[8] and RSL v Liquor Licensing Commission.[9] In addition, the record may be expanded to include the transcript of the proceeding if in fact it is incorporated into the record by reference. See Craig’s case, supra at pp.181-2. There is no suggestion in the present proceeding that the transcript has been incorporated.
[8][1998] 2 VR 274 at 280.
[9][1999] 2 VR 203 at 209.
If an attack is made on the basis that there is an error of law on the face of the record, this court is in fact restricted to that record, and a decision will only be quashed if it is affected by an error of law which is disclosed by that record. Where the attack is made on grounds other than an error on the face of the record, then the court can take into account any relevant material placed before it, subject of course to the rules of procedure and evidence. See R v Northumberland Compensation Appeal Tribunal ex parte Shaw per Denning LJ.[10] As his Lordship pointed out at p.353, the parties can, by agreement, expand the record.
[10][1952] 1 KB 338 at 352-3.
As the principles stated by the High Court clearly demonstrate, where the allegation is that there has been jurisdictional error by the inferior court, in a case where the court does in fact have jurisdiction and was exercising it, it is an extremely difficult task to establish that there was any jurisdictional error even though it is shown that an error occurred in the course of the proceeding. Of course, the situation is different where an error of law is demonstrated on the face of the record.
Ordinarily, an inferior court has jurisdiction to decide questions of law as well as questions of fact and if it makes an error in the course of exercising the jurisdiction, it has made an error in matters which it had jurisdiction to determine. It is only where it makes an error with respect to jurisdiction that the court can intervene.
The narrowness of this jurisdiction is exemplified by what the High Court said in Coal and Allied Operations v AIRC.[11] Gleeson CJ, Gaudron and Hayne JJ said in relation to jurisdictional error –
“There would only have been jurisdictional error on the part of the Full Bench if it had misconceived its role or if, in terms used by Jordan CJ in ex parte Hebburn Ltd; re Kearsley Shire Council, it ‘misunderstood the nature of its jurisdiction … or misconceived its duty or failed to apply itself to the question which the act proscribes … or misunderstood the nature of the opinion which it was to form.”
[11](2000) 74 ALJR 1348 at 1356.
I also refer to the observations made by Phillips JA in RSL v Liquor Licensing Commission.[12]
[12]Supra at 210-11 and 215.
Order 56 obliges the plaintiff to state the grounds upon which the relief is sought.
Mrs X instituted her proceeding first, and her originating motion failed to disclose any ground for relief. Leave was granted to her to amend her motion to state the ground for relief and it was expressed as follows -
“This (sic) is an error on the face of the record in as much as the Learned Judge concluded that the only appropriate order was an order giving guardianship of the children to the Secretary of the Department of Human Services.”
Mr X’s grounds for relief were –
“1.The learned judge erred in deciding that the conditions sought to be imposed in a proposed supervision order disposition were of a nature not contemplated by s.92 of the Children and Young Persons Act.
2.The learned judge erred in deciding that a Guardianship to the Secretary order was the appropriate disposition.
3.The learned judge erred in holding the provisions of s.86(2) of the Children and Young Persons Act had been complied with, alternatively, were not applicable.”
In their written submissions, jointly prepared by counsel for Mr and Mrs X, counsel argued other grounds.
On the face of the grounds set out in the plaintiffs’ motions, they do not appear to identify any error which is a ground for relief by way of judicial review. The grounds appear to relate to mixed questions of law and fact and an attack on the decisions leading to the orders made and do not allege any jurisdictional error.
It is clear that the learned County Court judge had jurisdiction to entertain the appeals from the Children’s Court.
At the outset, before considering each ground, it is necessary to consider the nature of the appeal and the effect of the orders made by the judge.
Nature of the Appeal
The right to appeal from the Children’s Court to the County Court is found in s.116. Section 116(6) provides –
“Subdivision 1 of Division 4 of Part 4 (except sections 83, 84, 87 and 90) of, and Schedule 6 (except clauses 3, 4 and 8) to, the Magistrates' Court Act 1989 apply, with any necessary modifications, to appeals to the County Court under this section as if –
(a)a reference to the Magistrates' Court were a reference to the Children’s Court; and
(b)a reference to section 83 or 84 were a reference to this section; and
(c)in section 85 for the words ‘and the appellant is not bound by the plea entered in the Magistrates' Court’ there were substituted the words ‘and the appellant is not bound by the fact that he or she did not contest the application’; and
(d)a reference to the sentencing order were a reference to the order or the dismissal of the application referred to in sub‑section (1).”
(Emphasis added).
Section 116(6A) provides that an appeal does not operate as a stay of any order unless the court otherwise orders. As earlier stated, no application was made to stay the orders made by the Children’s Court on 31 January 2002. The Act does not state the nature of the appeal. It is necessary to go to the Magistrates' Court Act 1989. Section 85 provides –
“85. Appeal operates as re-hearing
An appeal under s.83 or 84 must be conducted as a re-hearing and the appellant is not bound by a plea entered in the Magistrates' Court.”
The latter part of s.85 is modified by s.116(6)(c) of the Act so that the latter words read, “And the appellant is not bound by the fact that he or she did not contest the application.”
It follows that Mr and Mrs X who did not contest in the Children’s Court the finding that their children were in need of protection, were entitled to contest that in the County Court, which they did.
An appeal is a creature of statute.
There have been many discussions in the cases of the types of appeal. By way of example, I refer to what Mason J said in Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd.[13] There is no doubt that “an appeal by way of re‑hearing” has different meanings and the true nature of the appeal must ultimately depend upon the terms of the statute conferring the right. See Re Coldham; ex parte Brideson [No. 2].[14]
[13](1976) 135 CLR 616 at 619 et seq.
[14](1990) 170 CLR 267 at 273-4.
There are at least three types of appeal which could be described as a re‑hearing. The first is where an appeal court makes its own decision on the evidence before the court below. Secondly, an appeal by way of re‑hearing based upon the evidence given in the court of first instance supplemented by further evidence and finally, an appeal by way of hearing de novo (sometimes described as a re-hearing de novo).
There is a distinction between an appeal by way of re-hearing and a hearing de novo. The latter is a re-hearing of the original proceeding. That is, the court on the appeal is not bound by anything that occurred at the prior hearing and considers the matter afresh.
Sometimes the Legislature states that the appeal is a re‑hearing de novo. For example, Rule 77.05(7) of the Rules of Court prescribe that an appeal from the Master is a “re-hearing de novo of the application to the Master”. Section 85 of the Magistrates' Court Act 1989 describes the appeal “as a re-hearing”. However, the section has a long history dealing with appeals from courts of petty sessions to courts of general sessions, later Magistrates' Court to County Court. Such appeals have always been treated as appeals in the form of a hearing de novo. See R v Pilgrim[15] and Sweeney v Fitzhardings.[16]
[15](1870) LR 6; QB 89.
[16](1906) 4 CLR 716.
The appeal court is not concerned with the reasons given by the body at first instance for they are irrelevant, and it is not concerned as to whether an error was made or not by the body at first instance or whether the decision was wrong. It is not concerned as to whether any error of law occurred at first instance. On the appeal, the party who brought the proceeding below presents his case first, the appeal is determined on the evidence called on the appeal, the parties call whatever relevant evidence each considers appropriate and the court determines the appeal without regard to the reasons of the magistrate. The parties may call other evidence, they are not bound to call evidence which was called on the first hearing, and the court on appeal substitutes its decision based on the facts proven and law as at the date of the appeal. In Quilter v Mapleson,[17] Jessel MR said –
“On an appeal strictly so-called, such a judgment can only be given as ought to have been given at the original hearing; that on a re-hearing such a judgment may be given as ought to be given if the case came at that time before the court of first instance.”
(Emphasis added).
See also Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan.[18]
[17](1882) 9 QBD 672 at 676.
[18](1931) 46 CLR 73 at 107.
The appeal to the County Court from the Children’s Court in a protection application is somewhat different to the normal run of the mill appeals from the Magistrates' Court to the County Court. Those appeals are invariably criminal appeals and the appeal court is concerned with the commission of an offence, the facts of which usually are confined to a certain date. On such an appeal, it is not often that facts are adduced of circumstances which have occurred since the date of the commission of the criminal offence.
In a protection order, especially in a case such as the present, where no stay of the operation of the orders made by the Children’s Court was granted, the facts and circumstances are changing right up to the day the appeal is determined. The learned County Court judge was obliged to take into account the facts as found by her which existed at the date of the appeal and, of course, the law which applied at that date. It was not an issue on the appeal whether the original orders should or should not have been made.
As Dixon J said in the Victorian Stevedoring case, supra, at p.107 –
“Accordingly, that court must decide an appeal by applying to the circumstances as they exist, when the appeal is dealt with, the law which then operates to determine the rights and liabilities of the parties.”
(Emphasis added).
See Southern Motors v Australian Guarantee Corporation.[19] In my respectful opinion, those observations are apposite to an appeal from the Children’s Court to the County Court.
[19][1980] VR 187 at 191.
An appeal from a Magistrates' Court to a County Court has always been a hearing de novo in this State and in my opinion, an appeal from the Children’s Court to the County Court is a hearing de novo. The court is not concerned to determine whether or not the orders made by the Children’s Court should or should not have been made. That conclusion is supported by the provisions of s.86(1) of the Magistrates' Court Act 1989. Whatever be the outcome of the appeal, the County Court must set aside the order of the Magistrates' Court.
Counsel for Mr and Mrs X referred to the learned judge’s reasons and submitted that the learned judge misdirected herself with respect to the nature of the appeal and the issues that she had to decide.
At p.18, the learned judge said –
“On my reading of s.63, the question of whether grounds are established is to be determined objectively … and is to be determined as at the time when the protection application was made. In this case, although more than 15 months has passed in the meantime, I am to consider whether sub-parts (e) and/or (f) are established as at 30 June 2001, being the approximate date on which the respondent made the protection application.
I have reached the conclusion that each of the grounds in s.63(e) and s.63(f) is established in respect of A.”
The learned judge posed the same question in relation to the child B. See p.29 of reasons.
In my view, whether or not the children required protection as at the date when the interim order was made on 30 June 2001, or whether the children required protection on 31 January 2002 being the date of the Children’s Court orders, are not the questions on the appeal. However, it is important to consider the learned judge’s reasons as a whole. It is very clear that the learned judge considered and determined the question in light of all the evidence adduced in the appeal in September 2002. I refer in particular to p.10 dealing with A’s schooling, and p.17 et seq relating to her health. In respect to B, I refer in particular to p.27 et seq. It is clear from her reasons given under the heading “Appropriate Disposition” (p.30) and her conclusion (p.37 et seq) that her Honour did consider the facts as at the date of the appeal and came to the view that she should make a protection order in respect of each child based on the circumstances then existing.
The appeal was a hearing de novo and in my view, it is clear from her reasons for judgment, which form part of the record and is the only evidence before this court of what occurred at the hearing, that the learned judge did consider the question at the relevant date, namely, the hearing of the appeal. I am reinforced in that conclusion by the fact that none of the grounds for relief suggest the judge did not decide the issues at the relevant date.
Effect of the Orders Made
The learned judge ordered that in respect to each child, the orders made by the Children’s Court on 31 January 2002 be set aside. This was in accordance with s.86(1)(a) of the Magistrates' Court Act 1989. The judge was bound by that sub‑section to set the orders aside, irrespective of the outcome of the appeal.
She made orders in respect of each child. She found that the child was in need of protection under s.63 of the Act and ordered that each child “be placed on a Guardianship to Secretary Order”.
The judge further ordered that custody and guardianship of the child be granted to the Secretary of the Department to the exclusion of all other persons and -
“Remains in force for a period of ten months from 18 October 2002 until 17 August 2003.”
As a result of the orders being set aside on 18 October 2002, the orders ceased to have any effect. The operative orders in relation to each child were those made on the appeal. They replace the Children’s Court orders and become County Court orders made pursuant to s.86(1)(b) of the Magistrates' Court Act 1989. The orders operate for a period of ten months to 17 August 2003.
The learned judge had power under s.86(1A) of the Magistrates' Court Act 1989 to back‑date the orders she made, to a date not earlier than the date of the Children’s Court orders that were set aside on the appeal. She did not back-date the orders. There is no evidence that any application was made to her to do so. After she had published her reasons, no application was made to her in relation to the form or operation of the orders made by her. None of the grounds raise the issue of whether the order should have been back-dated. A complaint is made in written submissions that Mr and Mrs X had been denied natural justice because the effect of the orders extended the period of the protection orders beyond the original 12 months. The present proceedings will be determined in accordance with the grounds set out in the motions. However, I will consider the natural justice point, because the parties did make submissions in respect of it.
It is now necessary to deal with each ground for relief.
Only Appropriate Order
The only complaint made by Mrs X is, that there was an error on the face of the record as the judge concluded the only appropriate order was an order giving guardianship of the children to the Secretary.
The ground for relief of error on the face of the record is different to the jurisdictional error ground and developed independently of it. The jurisdictional ground is concerned with lack of jurisdiction. Sir William Wade, in his Administrative Law, 6th edition, at p.280, described the ground as “basically that of ultra vires, which is synonymous with ‘outside jurisdiction’ or ‘in excess of power’.”
The jurisdictional ground is concerned with an inferior court or administrative tribunal purporting to exercise jurisdiction which it did not have or whilst exercising the jurisdiction, makes a decision or grants an order which in effect takes it outside its jurisdiction.
The ground for relief of error of law on the face of the record is different. The court is confined to considering the record and if it displays a mistake of law, may correct it by quashing the record. It is not necessary to prove it is a mistake concerning jurisdiction, although on occasions it may be.
The error must be one of law. See Anisminic Ltd v Foreign Compensation Commission.[20] The mistake of law must be obvious.
[20][1968] 2 QB 862 at 892-3.
“The error of law must be fundamental to the decision and a cause of injustice. If the decision would have been the same without it, it would not be quashed”.[21]
[21]Wade, Administrative Law, at 316.
The error must be one of substance, that is, a real error of law. See R v Industrial Injuries Commission ex parte Amalgamated Engineering (No. 2)[22] per Lord Denning MR. The grant of the remedy is discretionary.
[22][1966] 2 QB 31 at 48-9.
Sir William Wade summarised the error ground at p.304 of his Administrative Law –
“This is the one region in which the doctrine of ultra vires is not dominant – the one region, in other words, where the courts are able to interfere with statutory determinations even though they are within jurisdiction. The standard jurisdictional test, which is usually the mainstay of the court’s power, is replaced simply by the test of correctness. For once it is a question of ‘right or wrong’ instead of a question of lawful or unlawful. Nevertheless the proceeding is not an appeal. It is a distinct branch of the High Court’s inherent jurisdiction over inferior tribunals.”
(Emphases added).
There is doubt whether the error ground is a ground distinct from the jurisdictional error ground in England but in Australia, the ground is separate and distinct. See Craig’s case, supra, at pp.178-9.
In the present proceeding, the record includes the judge’s reasons.
Mrs X’s ground, on its face, appears to question the correctness of the decision which, without more, is not a ground for judicial review and relief. The ground does not specify the alleged error of law.
The learned County Court judge was exercising the undoubted jurisdiction to hear and determine the appeal from the Children’s Court. She was acting within jurisdiction. The determination required her to consider two main issues, namely, whether each child was in need of protection within the meaning of s.63 and if so, whether the court should make an order pursuant to s.84(a). The types of orders that the court may make are set out in s.85. The court must not make a protection order without addressing the matters specified in ss.86 and 87. The learned judge’s reasons clearly demonstrate that she did consider these issues and the relevant matters and made the decision.
Mrs X’s ground does not make any complaint concerning the finding that each child was in need of protection. The complaint appears to be about the making of the guardianship order.
The ground does not identify the error of law on the face of the record and neither do the plaintiffs’ submissions identify any such error. It follows that this ground must fail.
But in any event, the learned judge’s reasons clearly demonstrate that she did consider the types of orders that were available and did conclude that the most appropriate one was the one that she made. At p.30 and following, of her reasons, she discussed what was the appropriate disposition to make in all the circumstances. No error has been established.
Mr X’s Grounds
The attack on the learned judge’s reasons for judgment and orders, made by Mr X, does not assert that there was an error of law on the face of the record.
The material in these proceedings comprised an affidavit sworn by Mr X on 16 April 2003, and an affidavit of a solicitor acting for Mrs X, Antonio Salce, sworn 20 February 2003.
The latter affidavit exhibited the reasons of her Honour Judge Cohen and the certified extract of the orders of the County Court. Mr X, in his affidavit, stated that at no stage was he served with any application for an extension of the guardianship order and further, to the best of his knowledge, no application was ever made to the County Court for an extension of the guardianship order.
Mr X’s grounds raise a jurisdictional error attack on the learned judge’s decision‑making process and orders. However, I will consider his grounds also on the basis of error on the face of the record. His affidavit seeks to raise the denial of natural justice ground, which was put to the court by the plaintiffs’ counsel but does not appear in the grounds for relief in either motion.
A. Correctness of Order
It is convenient to deal first with his ground 2. It raises a similar point to the ground raised by his former wife. The ground asserts that the judge erred in deciding that the order she made was the appropriate disposition. The ground does not identify the nature of the alleged error. This ground purports to attack the correctness of the judge’s order. This is not open on a judicial review. This ground fails. In any event, for the reasons dealing with Mrs X’s only ground, the judge did properly consider the options and made her decision after carefully weighing them.
B. Error Considering Supervision Order
Ground 1 of Mr X’s motion alleges that the judge erred in deciding that the conditions sought to be imposed in a proposed supervision order disposition were of a nature not contemplated by s.92 of the Act.
On the face of it, the ground does not appear to raise a jurisdictional question, nor does it allege an error of law on the face of the record.
The ground is based upon what her Honour said in her reasons concerning whether a supervision order ought to be made. Since the reasons form part of the record, I am prepared to consider this ground of complaint as also asserting an error of law on the face of the record.
To appreciate what her Honour was considering and determining, once the court made the finding that a child was in need of protection, the court considers whether some form of protection order should be made. One of the protection orders that can be made is a supervision order. See s.85(1)(a)(ii). Sections 91-95 (inclusive) deal with a supervision order and if such an order was made, it gives the Secretary responsibility for the supervision of the child but does not affect the guardianship or custody of a child. The court may impose conditions of the supervision order pursuant to s.92. The judge did consider whether she should make such a supervision order. Having considered the question, she stated her conclusion which was that the only appropriate order to make in the circumstances was the order of guardianship to the Secretary.
Mr X’s ground is based upon what her Honour said. At p.38 of her reasons, she said –
“I have also considered whether a supervision order under s.85(1)(a)(ii) with appropriate conditions to be observed by the parents, pursuant to s.92, could adequately protect the children from the risk of harm constituted by parental decision making. The conditions which I would wish to impose would be on the parents to the effect that decisions as to which school each child should attend is to be made by the respondent (hopefully with no intended change from her current school for A) and any medical consultation or treatment for A must be only with the approval of the respondent, and under the general supervision of Dr Harari. In my view, these are conditions which it would be inappropriate for me to impose because they are fundamental to the guardianship of a child, and s.91(1)(b) specifically provides that a supervision order does not affect the guardianship or custody of the child. I consider that they would be conditions of a nature not contemplated by s.92.”
It was submitted that what she said was wrong when she stated that it was inappropriate to make such an order because s.92 did not provide for any condition relating to the education or health of the child. In my opinion, the judge did not say that the court could not impose a condition relating to the education or health of the child under s.92. What her Honour said must be considered in the context of the particular circumstances of the case. A fair reading of what her Honour said was, that it would be inappropriate to impose the conditions she wished because such conditions are fundamental to the guardianship of the child in the circumstances of the case. A supervision order by definition cannot affect a guardianship order. See s.91(1)(b). She did not say that she could not impose such conditions. What she said was that they would be inappropriate in the circumstances proven before her and hence, were not conditions contemplated by s.92; that is, because of the findings made.
In my opinion, the ground of complaint does not deal with a jurisdictional question. As has been said on a number of occasions, once the jurisdiction is entrusted to an inferior court, there is no reviewable error if acting within jurisdiction, the court makes the wrong decision. In R v Governor of Brixton Prison ex parte Armah,[23] Lord Reid at p.234 said –
“If a magistrate or any other tribunal has jurisdiction to enter on the inquiry and to decide a particular issue, and there is no irregularity in the procedure, he does not destroy his jurisdiction by reaching a wrong decision. If he has jurisdiction to go right he has jurisdiction to go wrong. Neither an error in fact nor an error in law will destroy his jurisdiction.”
(Emphasis added).
[23][1968] AC 192.
But in my opinion, the learned judge did not make any error in relation to considering the question of a supervision order. She considered it, and decided it was not the appropriate order to make.
Further, there is no error of law on the face of the record. The observations made by her as to the effect of ss.91 and 92 have to be read taking into account the circumstances of the case and the findings made.
C. Consideration of s.86(2)
Mr X’s third ground alleged that the judge erred in holding that the provisions of s.86(2) of the Act had been complied with or alternatively, were not applicable. Before making a protection order, s.86 requires the court to consider a number of matters. Section 86(2) precludes the court making a protection order, which would have the effect of removing a child from the custody of the parent, unless the court has considered and rejected an order allowing the child to remain in the custody of the parent and the court is satisfied by a statement in the disposition report that all reasonable steps have been taken by the Secretary to provide services. The court must consider whether the order removing the child is in the best interests of the child.
In her reasons commencing on p.35, the learned judge did specifically consider s.86(2). As she noted at p.37, she did consider the question of restoring the children to the custody of their mother and in my opinion, it is clear beyond doubt that she did consider s.86(2) and was satisfied that the matters required by s.86(2) were complied with.
No jurisdictional error has been established in relation to this part of the decision making process, nor is there any error of law on the face of the record. This ground fails.
Conclusion with respect to grounds
In my opinion, neither Mr or Mrs X have made out any of the grounds in the originating motions for relief.
Alleged denial of natural justice
None of the grounds raised the issue of denial of natural justice. However, counsel for Mr and Mrs X did, in their written and oral submissions, contend that the County Court judge had denied natural justice to both parents. The gravamen of the complaint was that at no stage did the judge advise the parents that she was considering extending the period of guardianship for a period close to nine months. It was submitted that the effect of the orders made on the appeal was to extend the original order from 12 months to 21 months. The argument relied upon cases involving sentencing where the courts have held, that there was a breach of the rules of natural justice to fail to warn an appellant that there was a likelihood the sentence would be increased and the sentence was in fact increased. See Brand v Parsons and Anor.[24] Mr and Mrs X did not seek a stay of the operation of the orders made by the Children’s Court, and the appeal has had the practical result that the Guardianship to Secretary order has been extended beyond the 12 months, which was the period specified by the Children’s Court orders.
[24][1994] 1 VR 252.
A denial of natural justice ground is different to a jurisdictional error ground or error of law on the face of the record. The ground does not appear in either motion but since the parties argued the matter, I am prepared to briefly deal with it.
At the outset, what the judge did was in accordance with the law. See s.86. She set aside the orders made in the Children’s Court and she made an order which she considered was just and which the Children’s Court could have made. It is said, however, that she has denied the plaintiffs natural justice because she should have warned them that the practical effect was to increase the period of the original order.
Under s.86(1A), she could have back-dated the order. She was considering the issues at the date of the appeal. This included all that had occurred since 31 January 2002. It was necessary for her to consider the period of the guardianship order, which she did.
The learned judge said at p.38 –
“I have therefore reached the conclusion that to protect these children from the risk of harm as I have found it to exist, the only appropriate order I can make is to order guardianship to the Secretary. The question then is for how long.”
Her Honour then considered certain matters, having noted that the order of the Children’s Court was for 12 months and that she must set aside the order. She concluded as follows –
“In the circumstances, I have decided that an appropriate period to enable the children to become established in their schooling and for A’s health to continue to improve, but which also would encourage the respondent to seriously address the practicalities of re‑unification, is ten months from the date of this order.”
No application was made to her to back-date the order prior to or after she published her reasons. No submissions were made to her after she published her reasons with respect to the order and its effect. No ground alleging denial of natural justice was included in the originating motions and this ground of complaint has all the hallmarks of an afterthought. Given the length of the hearing, the number of witnesses called and the evidence of the circumstances existing at the time of the appeal hearing, it is not surprising that no party made any submission that the order should be backdated.
It is said that in those circumstances, the parents have been denied procedural fairness. In so far as fairness is a relevant matter, it could not be said in the circumstances that the orders were unfair.
The principle upon which Mr and Mrs X rely concerns sentencing. See Brand v Parsons,[25] Bytchi and Gashi v the DPP[26] and Parker v the DPP.[27] The rule has been abrogated in County Court appeals against sentence.
[25][1994] 1 VR 252.
[26]Unreported decision of the Victorian Court of Criminal Appeal delivered 29 March 1994.
[27](1992) 28 NSWLR 282 at 295.
Section 86(1AA) of the Magistrates' Court Act 1989 provides –
“Despite any rule of law or practice to the contrary, the County Court is not required, on the hearing of an appeal under s.83, to warn the appellant before making a sentencing order of the possibility of a sentencing order being made, or of its intention to make a sentencing order, that is more severe than that made by the Magistrates' Court.”
When this was drawn to Mr Nash QC’s attention, he submitted that a Guardianship to Secretary order is not analogous to a sentencing order. Nevertheless, he seeks to rely upon the authorities which are concerned with increasing a sentence.
Section 116(6)(d) of the Act specifically deals with the reference to a sentencing order in s.86 of the Magistrates' Court Act 1989. The provisions of the Magistrates' Court Act 1989 are to apply with any necessary modifications to appeals to the County Court under the Act. Specifically, s.116(6)(d) makes s.86(1AA) of the Magistrates' Court Act 1989 applicable to the appeal. It therefore follows, in my opinion, that s.86(1AA) of the Magistrates' Court Act 1989 applies and accordingly, the court was not obliged to warn the parties of the possibility of an order lasting longer than the original order.
There is no substance in this complaint.
A denial of procedural fairness ground, is based upon a denial of what is fair and just in the conduct of the hearing in all the circumstances. The order appealed from was for a period of 12 months. Where a court specifies a period not exceeding 12 months, then at any time while the order is in force, the Secretary may apply for an extension of the period of the order for a period not exceeding 12 months. See s.107(1) of the Act. Ms Buchanan informed the court that an application would have been made to extend the period for another 12 months. If such an application had been made, then the very issues which were decided on the appeal would have been decided. The County Court heard the appeal whilst the original order was still in force. Neither parent made application to stay the operation of the Children’s Court orders. Because of the appeal being a re-hearing de novo, the court heard all the relevant circumstances as at the date of the hearing of the appeal and in effect, was dealing with an extension of the original order. As I have stated, no submissions were made concerning backdating the order and it is clear, in my view, that the parties proceeded at the appeal on the assumption that the court, if satisfied each child was in need of protection, would make a new order. Given all the circumstances, in my view there has not been a denial of procedural fairness.
If it was open to the plaintiffs to rely upon this ground and assuming that they had established it, it would still be a matter of discretion for the court to decide whether or not to quash the orders made. There was no evidence in this proceeding of what either parent would have done if the learned judge, at any time during the course of the hearing, had indicated that she would make an order which may have the effect of increasing the protection order beyond 12 months. In my opinion, the reality is that if she had given such an indication, the parties would have continued with the appeal. If the parents had abandoned the appeal, then the orders made by the Children’s Court would have continued until 30 January 2003. No doubt counsel for the Department would have informed the court that an application would be made to extend the period of the original orders. Responsible counsel acting for the parents would have raised with them the practical utility of abandoning the appeal, bearing in mind that witnesses were called over 19 days, dealing with what was in the best interests of either child. Nothing would have been gained by the parents abandoning the appeal and this would have been pointed out to them by their counsel. The practical result would have been that another application would have been made and substantial additional costs would have been incurred. There would have been very strong arguments justifying the exercise of the discretion by this court to refuse to set aside the orders made.
Conclusion
It follows that neither Mr nor Mrs X have made out any ground for relief and their originating motions must be dismissed.
Subject to any submissions by counsel, I propose to make the following order –
(1)That in proceeding 8654 of 2002, the plaintiff’s originating motion filed 17 December 2002 be dismissed.
(2)In proceeding 8656 of 2002, the plaintiff’s originating motion filed 17 December 2002 be dismissed.
I will hear the parties on the question of costs.
---
6
6
0