N L v Chief Executive of the Department for Child Protection
[2022] SASC 57
•19 January 2022
Supreme Court of South Australia
(Civil: Judicial Review)
N L v CHIEF EXECUTIVE OF THE DEPARTMENT FOR CHILD PROTECTION & ANOR
[2022] SASC 57
Judgment of the Honourable Justice Hughes
ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT - EXISTENCE OF OTHER REVIEW OR APPEAL RIGHTS
FAMILY LAW AND CHILD WELFARE - CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION - CHILDREN IN NEED OF PROTECTION - GUARDIANSHIP OF CHILDREN - MEDICAL TREATMENT
On 18 January 2022 the applicant filed an application seeking judicial review of a decision made by the Chief Executive of the Department for Child Protection (Chief Executive) to vaccinate the applicant’s daughter, in the guardianship of the Chief Executive, against COVID-19 and its variants. The applicant further sought an injunction to prevent any such vaccination from taking place for the duration of any review.
By way of interlocutory application dated 19 January 2022 the respondent sought summary dismissal pursuant to Uniform Civil Rules 2020 (SA) (UCR) rr 144.2 and 256.5 on the ground that there was no reasonable basis for the applicant’s application. Alternatively, the respondent sought that the application be struck out in full pursuant to UCR rr 34.1, 82.1 and 82.2. In the further alternative the respondent sought the application be dismissed due to the availability of an alternate avenue of review.
Held, allowing the respondent’s interlocutory application and dismissing the applicant’s application:
1. The relief sought by the applicant would inevitably be refused due to the availability of an alternate avenue of review.
2. The applicant’s action and application for injunctive relief is dismissed.
Children and Young People (Safety) Act 2017 (SA) s 84, s 157; South Australian Civil and Administrative Tribunal Act 2013 (SA) s 36, s 71; Uniform Civil Rules 2020 (SA) r 34, r 82, r 144, r 256, referred to.
Harradine v Adelaide Magistrates Court [2021] SASC 16; Vansetten v The State of South Australia [2020] SASC 158, considered.
N L v CHIEF EXECUTIVE OF THE DEPARTMENT FOR CHILD PROTECTION & ANOR
[2022] SASC 57Civil
HUGHES J
Introduction
The applicant is the mother of a child who is subject to an order under the Children and Young People (Safety) Act 2017 (the “CYPS Act”) that she be in the care of the Chief Executive of the Department for Child Protection (“the first respondent”). The first respondent intends to have the child vaccinated against COVID 19. The applicant does not wish for this to occur. The applicant brought an action for an injunction. The first respondent applied to have the proceedings dismissed or struck out. A directions hearing was conducted on 19 January 2022. The first respondent undertook not to vaccinate the child for a short period to allow certain steps to be taken including permitting the applicant to amend her application and respond to the first respondent’s application for summary dismissal or strike out of the proceedings
The summary dismissal argument was listed for hearing on 27 January 2022. The parties filed written submissions. The child had separate legal representation and adopted the First Respondent’s position on the application for summary dismissal without taking an active role.
The amended proceedings seek declaratory relief in respect of the lawfulness of a decision made by the respondent some time before 10 January 2022.
On 27 January 2022 I granted the first respondent’s application for summary dismissal and made an order for costs in the first respondent’s favour, and advised the parties that I would provide reasons. I now do so.
The events leading to the application for summary dismissal
The Applicant’s Amended Originating Application for Review (FDN 13) was filed on 25 January 2022.
It is an application for judicial review of a decision made by the Chief Executive of the Department for Child Protection (though described as the Department itself) to vaccinate the applicant’s child, DDL (“the child”) against COVID-19. The decision was said to have been made on or before 10 January 2022.
The orders sought by the applicant were:
1.A declaration that the decision was made beyond power.
2.An injunction preventing “any further action pursuant to the section or power relied on by the decision-maker”.
No order for prohibition or certiorari was sought. The second proposed order was not confined to the child, nor was it confined to vaccination.
The first respondent sought to have the judicial review proceedings summarily dismissed on the grounds that the decision that is the subject of the proceedings:
·Was within power.
·Was made within a statutory regime that did not confer rights on the application in respect of the decision.
·Was not a legally unreasonable decision.
The first respondent also contended that the application for judicial review was not supported by admissible evidence regarding the efficacy of COVID-19 vaccines that might be relied upon to found a claim of legal unreasonableness.
In the alternative, the first respondent sought to strike out the application (whereupon the proceedings would remain on foot and the applicant could potentially amend the application further) on the basis that the applicant’s contentions were not supported by admissible evidence, that none of the claims had a reasonable basis, that the proceedings would be an abuse of process, and were manifestly futile.
On consideration of the arguments, that which was directed at utility appeared to have the potential to dispose of the issue without a contest as to evidence and, importantly, without trespassing upon the role of another decision-maker in whom the task of considering a review of the decision was statutorily reposed. Accordingly, it was upon that issue that the Court directed the parties to focus.
Legislative regime
Whilst the evidence on the issue is incomplete and untested, the parties were content for the purposes of this application for the Court to assume that the first respondent had exercised a power to decide that the child would be vaccinated, and did so purportedly under section 84(1)(g) of the CYPS Act. That section provides that the Chief Executive may, in relation to a child under her guardianship exercise various powers including to “make arrangements (including admission to hospital) for the professional examination, assessment or treatment” of the child. The first respondent’s decision for the child to be vaccinated against COVID-19 was one that the first respondent considered could be made by the respondent without obliging her to consult with, or act upon the views of, the applicant with respect to the decision.
The applicant contends, amongst other things, that the decision was not within the contemplation of section 84(1)(g); in particular because “treatment” does not encompass the act of vaccination. Even if it did, the applicant contends that the decision was one that was not the guardian’s to make, nor was it a legally reasonable decision based on the efficacy of vaccination.
Section 157 of the CYPS Act provides a scheme under which a person may seek an internal review of a decision of the Chief Executive made in her capacity as guardian. The parties agreed that the decision that the respondent made that the child be vaccinated is one that is subject to such a review. Indeed, the applicant submitted to the Court that she had lodged an application for review. At the time of the hearing it had not been decided, but the Crown Solicitor informed the Court that the first respondent had undertaken to complete the review and communicate a decision to the applicant by close of business the following day.
There would appear to be no legislated mechanism for a person seeking internal review to have the operation of the decision stayed pending the outcome of the internal review. There was no evidence before the Court indicating that the applicant had asked the Chief Executive to stay the operation of the decision pending the internal review or, if she had, what the response had been. However, this issue was addressed by the giving of an undertaking by the first respondent not to vaccinate the child for a particular short period, to enable the applicant to pursue her challenge through the review channel afforded by the CYPS Act.
A person who is dissatisfied with a decision following an internal review has a right to challenge the decision under the South Australian Civil and Administrative Tribunal 2013 (“the SACAT Act”). That challenge is undertaken by way of a merits review pursuant to Part 3, Division 3 of the SACAT Act. Section 36 of the SACAT Act provides that the South Australian Civil and Administrative Tribunal (“the Tribunal”) may grant a stay of the operation of a decision pending the review.
The power of the Tribunal on a review includes the setting aside of the decision and the substitution of a different decision. It is evident that if the decision-maker has acted beyond power (as asserted), that can be corrected on internal review or on external review by the Tribunal. The review afforded is by way of re-hearing and allows, in the Tribunal’s discretion, the receipt of further evidence for the purpose of reaching the correct or preferable decision.
The processes of the Tribunal are designed to occur expeditiously. Since the order for summary dismissal, the Tribunal has heard and determined the review and the outcome of that process is currently the subject of an appeal to this Court.
Summary dismissal
Under Rule 256 of the Uniform Civil Rules, the Court must dismiss an action for judicial review “unless the Court is satisfied that there is a reasonable basis” for it. Rule 144 empowers the Court to enter a summary judgement if there “is no reasonable basis for prosecuting” the claim. As Doyle J said in Vansetten v The State of South Australia,[1] there is no practical difference between these two tests. The question is whether the applicant has a real prospect of success. His Honour said, (at 68)
I also observe that while the same cautionary principles apply, the Court’s power to summarily dismiss proceedings extends to situations in which the respondent challenges the applicant’s entitlement to discretionary relief. If the Court is satisfied that, even if a ground of review were made out, there is no reasonable basis for it to exercise its discretion to grant the relief sought, then the Court can and should dismiss the applicant’s claim.
[1] [2020] SASC 158 at 68.
Futility
Section 157, which confers the right of internal review, places no express constraints upon the reviewer as to the scope of the review. No argument was put to the Court to the effect that the bases of challenge that the applicant has to the decision could not be put to the reviewer. Those bases of challenge are:
·The decision is beyond power because the Act does not authorise the guardian to vaccinate the child and, in particular, vaccination is not ‘treatment’ for the purposes of section 84 of the CYPS Act;
·In the alternative, the guardian should not have made the decision to vaccinate against the mother’s wishes and in particular where the mother may resume guardianship of the child during this year;
·In the alternative, the guardian should not have made the decision to vaccinate as there is insufficient evidence to support its efficacy.
It was not contended by the applicant that these matters could not have been put to the decision maker on internal review.
If the applicant is successful, on the internal review, in persuading the first respondent not to vaccinate the child, these proceedings before the Court have no utility. If the applicant is not successful, she has an avenue of appeal to the Tribunal. Again, it was not suggested to the Court that the Tribunal does not have the ability to consider the applicant’s arguments and, if persuaded, to set aside the first respondent’s decision including on grounds that it was beyond power. If the applicant continued to be dissatisfied, an appeal lies to this court pursuant section 71 of the SACAT Act.
The Court does not have a discretion to refuse to entertain an application for judicial review, but has a discretion to refuse relief: Harradine v Adelaide Magistrates Court.[2]
[2] [2021] SASCAC 16, [19].
The bringing of proceedings in this Court seeking declaratory relief is unlikely to result in a grant of the requested relief because of the existence of an appropriate mechanism for the determination of the lawfulness of the decision.
The applicant maintains that the issue is of public importance and that the applicant’s counsel has been approached by parents who share his client’s view. That may be so, but public importance is not a ground for a grant of relief where an avenue of appeal lies. The Court should not be disposed to the bypassing of the mechanisms that the legislature has laid down, in favour of an advisory role.
In the circumstances of this case, in which the applicant had already commenced the process of seeking review by the first respondent, the first respondent’s contention that the judicial review application should be summarily dismissed because the relief sought would inevitably be refused, is compelling and ought to be granted.
In light of this, there is no need for the Court to assess the Crown’s further arguments that the applicant’s substantive complaints about the lawfulness of the decision are without merit. Those matters are properly ones that may be considered and determined under the statutory review process and any appeal therefrom.
Injunction
Having determined that the proceedings seeking judicial review were misconceived and ought be dismissed, it still remained to be considered whether the application for an injunction to protect the applicant’s position in respect of the challenge to the first respondent ought be determined.
The first respondent is not obliged to refrain from acting in pursuit of a decision pending an internal review. She is not conferred with a power to determine an application to refrain from so acting.
The issue however, required no final determination because the first respondent undertook not to vaccinate the child until close of business on Thursday 6 February 2022. The parties anticipated that, (depending on the result of the internal review and whether an application for review was brought in the Tribunal), the Tribunal could be requested to make an order staying the operation of the decision pending the disposition of the review.
Orders
The Orders of the court are:
1.The First Respondent’s application FDN-7 for summary dismissal of action CIV-22-000497 is granted.
2.Action CIV-22-000497 is dismissed.
3.The applicant is to pay the First Respondent’s costs of the action.
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