Nl v Chief Executive of the Department for Child Protection
[2023] SASCA 20
•2 March 2023
Supreme Court of South Australia
(Court of Appeal: Civil)
NL v CHIEF EXECUTIVE OF THE DEPARTMENT FOR CHILD PROTECTION & ORS
[2023] SASCA 20
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Auxiliary Justice Buss)
2 March 2023
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - PARTICULAR CASES - OTHER MATTERS - COSTS
FAMILY LAW AND CHILD WELFARE - CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION - CHILDREN IN NEED OF PROTECTION - PROCEEDINGS RELATING TO CARE AND PROTECTION - COSTS
On 27 May 2022, the Senior Judge of the Youth Court made an order dismissing the appellant’s application for costs against the first respondent, the Chief Executive, in connection with two applications before the Youth Court.
On appeal, the appellant alleges that the Judge erred in dismissing the appellant’s application for costs in respect of an Interlocutory Application (Ground 1) and the Principal Application (Ground 2) on the basis that she lacked the power to make those orders.
The Court held (granting leave and an extension of time, but dismissing the appeal):
1.Section 60 of the Children and Young People (Safety) Act 2017 (SA) (the Safety Act), properly construed, prescribes, completely and exclusively, the circumstances in which the Court may make an order for costs against the Crown where an application has been made for an order under s 53 of the Safety Act.
2.The Court’s discretionary power under s 60 to make an order for costs against the Crown and in favour of the appellant in relation to the Principal Application was not enlivened because that application was not dismissed.
3.The Interlocutory Application was not separate from or independent of the Principal Application. Consequently, there was no scope for the operation of s 60 in relation to the Interlocutory Application.
4.Rule 11(2)(q) of the General Rules is a form of delegated legislation. It cannot override, alter or detract from s 60 of the Safety Act. Rule 11(2)(q) does not apply where an application has been made for an order under s 53 and an order for costs is sought against the Crown in respect of the application.
Children and Young People (Safety) Act 2017 (SA) ss 3, 4, 5, 6, 16, 49, 50, 51, 52, 53, 54, 55, 56, 58, 57, 58, 59, 60, 120, 126; Crown Proceedings Act 1972 (SA) (repealed), s 7; Crown Proceedings Act 1992 (SA) s 5; Legislation Interpretation Act 2021 (SA) s 14(1); Uniform Civil Rules 2020 (SA) r 212.3(1)(f); Youth Court Act 1993 (SA) ss 4, 7, 18, 22, 32; Youth Court (Care and Protection) Rules 2018 (SA) rr 3, 4; Youth Court (General) Rules 2016 (SA) rr 4, 11, 15, referred to.
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27; Alphapharm Pty Ltd v H Lundbeck A/S (2014) 254 CLR 247; Ashton v Commonwealth of Australia (2003) 126 FCR 297; Attorney General of Queensland v Holland (1912) 15 CLR 46; Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; Cullis v Ahern (1914) 18 CLR 540; De L v Director General New South Wales Department of Community Services [No 2] (1997) 190 CLR 207; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; Gentel v Rapps [1902] 1 KB 160; Goyma v Moore (1999) 154 FLR 298; Harrington v Lowe (1996) 190 CLR 311; Johnson v The King [1904] AC 817; Mills v Meeking (1990) 169 CLR 214; Minister for Employment and Workplace Relations (Cth) v Gribbles Radiology Pty Ltd (2005) 222 CLR 194; Morton v Union Steamship Company of New Zealand Ltd (1951) 83 CLR 402; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Re City Area Leases Ordinance 1936 and Axiom Pty Ltd (1986) 83 FLR 259; Re Lynch; Ex parte Reid (1943) 43 SR (NSW) 207; Re The Corporation of the City of Port Aelaide; Ex parte Groom [1922] SASR 35; R v Commissioner of Patents; Ex parte Martin (1953) 89 CLR 381; R v Minister of State of Interior (1972) 20 FLR 449; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; TN v Walford (1998) 148 FLR 78; Travelex Ltd v Federal Commissioner of Taxation (2010) 241 CLR 510; Tucker v Dickson (1981) 27 SASR 321; Webster v McIntosh (1980) 49 FLR 317; White v Morley [1899] 2 QB 34, considered.
NL v CHIEF EXECUTIVE OF THE DEPARTMENT FOR CHILD PROTECTION & ORS
[2023] SASCA 20Court of Appeal – Civil: Livesey P, Doyle JA and Buss AJA
THE COURT:
The appellant has appealed against an order of the Senior Judge of the Youth Court of South Australia (the Senior Judge), made 27 May 2022, dismissing the appellant’s application dated 23 March 2022 for an award of costs against the first respondent, namely the Chief Executive of the Department for Child Protection (the Chief Executive).
The appellant’s application for an award of costs was made in respect of two applications before the Youth Court.
The first application (the Principal Application) was dated 26 February 2020 and made by the Chief Executive, pursuant to s 50 of the Children and Young People (Safety) Act 2017 (SA) (the Safety Act). The Principal Application stated, in effect, that the order sought by the Chief Executive was an order under s 53(1)(g) of the Safety Act in respect of the appellant’s three children, being the second, third and fourth respondents.
The second application (the Interlocutory Application) was dated 25 May 2020 and made by the Chief Executive for an order setting aside a witness summons issued by the appellant in connection with the Principal Application.
The appellant filed two notices of appeal. One notice was addressed to the Full Court and the other to a single Judge of the Supreme Court. The second notice was filed four days out of time and the appellant has applied for an extension of time. The grounds of appeal in both appeals are identical.
On 8 July 2022, Livesey P made an order, pursuant to rule 212.3(1)(f) of the Uniform Civil Rules 2020 (SA), in relation to each appeal, that the appellate jurisdiction of the Supreme Court be exercised by the Court of Appeal.
In our opinion, the required extension of time and permission to appeal should be granted. However, for the following reasons, the appeals should be dismissed.
The history of the proceedings in the Youth Court
In the Principal Application the Chief Executive sought a long‑term order under s 53(1)(g) of the Safety Act that the appellant’s three children be placed under the guardianship of the Chief Executive until each attained the age of 18 years. The Chief Executive did not seek any other order under s 53. The appellant opposed the Chief Executive’s application for the long‑term order, but indicated that she would consent to a 12 month order under s 53(1)(e), so that during the 12 month period she could continue to work towards addressing concerns about her parenting of the children.
On 1 May 2020, the appellant issued a witness summons in connection with the Principal Application, directed to the Department for Child Protection, seeking the production of certain documents relating to the appellant and her children.
On 10 June 2020, the Senior Judge dismissed the Interlocutory Application made by the Chief Executive for an order setting aside the witness summons. On that date her Honour ordered the Department for Child Protection to produce various documents sought by the appellant in the witness summons.
On 23 July 2020 and 12 October 2020, the Principal Application was tried before the Senior Judge.
On 27 November 2020, the Senior Judge published written reasons in relation to the Principal Application. Her Honour decided not to make the long‑term order sought by the Chief Executive and, instead, proposed to make an interim order that the appellant’s three children be placed under the guardianship of the Chief Executive for a period of 12 months and an order that the matter be referred to the Reunification Court.
In her written reasons, the Senior Judge said [158]‑[159]:
I would propose making an interim order for a period of 12‑months to enable the matter to be referred to the Reunification Court for oversight. It is important that the adaptive functioning assessment is undertaken as a matter of urgency. Clearly if [the appellant] does not demonstrate any meaningful progress within a reasonable timeframe, the Department can request the matter be referred out of the Reunification Court to seek long‑term orders. If [the appellant] is making good progress it is open for the interim order to be extended for a further period. Such an extension is not uncommon in the Reunification Court where progress is being made and reunification [is] likely to be viable.
However, before making any orders, I propose to give counsel the opportunity to obtain instructions and have further discussions with each other concerning the precise orders to be made.
On 27 November 2020, when she published her written reasons, the Senior Judge said (ts 2):
I deliver my decision in this matter in which I have refused the application of the Chief Executive. I’ve indicated in my reasons that I assume I’m to make an interim order for 12 months but I just wondered if counsel wanted to have the opportunity to talk about it.
After hearing from counsel, the Senior Judge made formal orders on 27 November 2020 as follows:
ON THE APPLICATION of the Chief Executive … for care and protection orders in relation to the abovenamed [children]:
FINAL ORDERS
1.The hearing of the application is adjourned to the Reunification Court on the 3rd day of March 2021 at 10:00am.
INTERIM ORDERS
1.[The appellant’s children] are placed under the guardianship of the Chief Executive, for a period of 12 months.
The Reunification Court has not been created or recognised by statute. It is a body that was established administratively by the Youth Court in January 2019 as a pilot programme and with the support and assistance of the Department for Child Protection and the Legal Services Commission. The Youth Court ordinarily refers a pending matter to the Reunification Court where reunification between a child or children and their parent or parents is being actively considered and assessed by the Department. If the Youth Court refers a pending matter to the Reunification Court, the Youth Court ordinarily makes an interim order in respect of the relevant child or children for a period of 6, 9 or 12 months pursuant to s 53(2) of the Safety Act and otherwise adjourns the matter. The structure, purpose and operation of the Reunification Court is set out in Youth Court of South Australia Practice Direction 1 of 2021 dated 23 August 2021.
In the present case, after the Youth Court made the interim order on 27 November 2020, placing the appellant’s three children under the guardianship of the Chief Executive for a period of 12 months, there were seven hearings in the Reunification Court between 27 November 2020 and 3 November 2021.
On 3 November 2021, the Youth Court extended, for a period of 4 months, the 12 month interim order that it made on 27 November 2020.
On 26 March 2022, the extended interim order lapsed.
As we have mentioned, by an application dated 23 March 2022, the appellant sought an award of costs against the Chief Executive in respect of the Principal Application and the Interlocutory Application. On 28 April 2022, the application for costs was heard by the Senior Judge. On 27 May 2022, her Honour dismissed the application.
The Senior Judge’s reasons for dismissing the appellant’s application for costs
On 27 May 2022, the Senior Judge published reasons for decision in relation to the appellant’s application for costs.
Her Honour dealt first with the application for costs in respect of the Principal Application. Her Honour noted that the power of the Youth Court to make an order for costs against the Chief Executive is contained in s 60 of the Safety Act, which provides:
If the Court dismisses an application for an order under section 53 (not being an application for a variation or revocation of an order), the Court may make such order for costs against the Chief Executive in favour of any other party to the proceedings as the Court thinks fit.
The Senior Judge then said:
(a)the Chief Executive had sought a long‑term order with respect to the appellant’s children, pursuant to s 53(1)(g) of the Safety Act; and
(b)the Youth Court had refused to make that order and instead had made an interim order, pursuant to s 53(2) of the Safety Act, placing the appellant’s children under the guardianship of the Chief Executive for a period of 12 months.
Her Honour rejected the submission of counsel for the appellant that the refusal of the Principal Application was equivalent to a dismissal of the application within s 60 of the Safety Act. Her Honour said that the term ‘dismisses’ in s 60 ‘clearly contemplates the finalisation of the application’ [18]. Her Honour explained that ‘[t]his did not occur in the present case and … the matter proceeded in the Reunification Court on the basis of the interim guardianship order made’ [18]. Her Honour added that if the Principal Application had been dismissed the Youth Court would have become functus officio with respect to the proceedings. Her Honour concluded that the power to make an order for costs under s 60 of the Safety Act had not been enlivened because there had been no dismissal of the Principal Application.
The Senior Judge then dealt with the application for costs in respect of the Interlocutory Application.
Her Honour noted that the Chief Executive had made the Interlocutory Application pursuant to rule 15(9) of the Youth Court (General) Rules 2016 (SA) (the General Rules), which provides:
A witness summons that is vexatious, oppressive or an abuse of process may be set aside by the Court on application by a party or person with sufficient interest.
Rule 15(10) of the General Rules empowers the Youth Court, in acting under rule 15(9), to set aside the witness summons in whole or in part, or to grant other relief in respect of it.
The Senior Judge said that the Interlocutory Application made by the Chief Executive for an order setting aside the witness summons did not seek any orders pursuant to s 53 of the Safety Act.
Her Honour observed that on 10 June 2020 she dismissed the Interlocutory Application and ordered the Department for Child Protection to produce a number of the documents sought by the appellant in the witness summons.
The Senior Judge said it was clear that s 60 of the Safety Act had no application with respect to the dismissal of the Interlocutory Application and, in the circumstances, the Youth Court did not have power to make any order for costs in respect of the application.
The grounds of appeal
The appellant relies upon two grounds of appeal.
Ground 1 alleges, in essence, that the Senior Judge erred, in dismissing for lack of power, the appellant’s application for costs in respect of the Interlocutory Application in that:
(a)her Honour failed to hold, but should have held, that she had power to award costs to the appellant pursuant to rule 11(2)(q) of the General Rules; and
(b)her Honour failed to exercise, but should have exercised, her discretion pursuant to rule 11(2)(q) of the General Rules to make an order for the costs of that application against the Chief Executive and in favour of the appellant.
Ground 2 alleges, in essence, that the Senior Judge erred, in dismissing for lack of power, the appellant’s application for costs in respect of the Principal Application in that:
(a)her Honour failed to hold, but should have held, that she had power to award costs to the appellant because:
(i)the Principal Application was dismissed and, in consequence, the power under s 60 of the Safety Act was enlivened; further or alternatively
(ii)the Youth Court had power to award costs to the appellant pursuant to rule 11(2)(q) of the General Rules; and
(b)her Honour failed to exercise, but should have exercised, her discretion under s 60 of the Safety Act, further or alternatively pursuant to rule 11(2)(q) of the General Rules, to make an order for the costs of that application against the Chief Executive and in favour of the appellant.
The relevant framework of the Safety Act
The long title of the Safety Act states that it is an Act ‘to protect children and young people from harm; to provide for children and young people who are in care; and for other purposes’.
Section 3(1) of the Safety Act states that the Act binds the Crown in right of the State of South Australia and, in so far as the legislative power of the Parliament permits, the Crown in all its other capacities.
Chapter 2 is headed ‘Guiding principles for the purposes of this Act’ and comprises s 4 to s 15.
Section 4(2) provides:
The Parliament of South Australia recognises that, as a State, we want each child and young person to benefit from (at least) the following outcomes:
(a)to be safe from harm;
(b)to do well at all levels of learning and to have skills for life;
(c)to enjoy a healthy lifestyle;
(d)to be active citizens who have a voice and influence,
and the Parliament of South Australia accordingly commits to promoting these outcomes.
Section 5 provides:
The Parliament of South Australia recognises that—
(a)it is the duty of every person in the State to safeguard and promote the outcomes set out in section 4(2); and
(b)the provisions of this Act, and compliance with its provisions, form only a small part of the way in which the State, the agencies of the State, the Commonwealth and every citizen of the State discharge that duty.
Section 6 is concerned with the interaction between the Safety Act and other Acts. Section 6 provides:
(1)This Act is to work in conjunction with all of the laws of the State, and, in particular, the Child Safety (Prohibited Persons) Act 2016 and the Children and Young People (Oversight and Advocacy Bodies) Act 2016, to further and achieve the aims set out in this Chapter.
(2)This Act is in addition to, and does not derogate from, any other Act or law.
Chapter 3 is headed ‘Interpretation’ and comprises s 16 to s 19.
Section 16(1) provides that in the Act, unless the contrary intention appears:
(a)Chief Executive means the Chief Executive of the Department;
(b)Court means the Youth Court;
(c)Department means the administrative unit of the Public Service specified by the Minister by notice in the Gazette for the purposes of this definition; and
(d)Reunification, in relation to a child or young person, means a reunification of the child or young person and a person or persons from whom the child is removed under the Act.
Chapter 6 is headed ‘Court orders relating to children and young people’ and comprises s 49 to s 68.
Section 49 states that an application for an order under s 53 may be made by:
(a)the Minister; or
(b)the Chief Executive; or
(c)a person authorised by the Chief Executive to apply for such orders.
Section 50 specifies when an application for an order under s 53 must be made and when an application for an order under s 53 may be made.
Section 51 specifies the persons who are parties to an application for an order under s 53 or an application for the variation, extension or revocation of such an order. The parties are the applicant, the child or young person who is the subject of the application, and each parent or guardian of the child or young person.
Section 53(1) provides that if, on an application under the Act, the Court is satisfied that it is appropriate to do so, the Court may make one or more of the orders specified in s 53(1) in relation to a child or young person.
The orders specified in s 53(1) include:
(a)an order requiring the child or young person, or a parent or guardian of the child or young person, or any other person who has the care of the child or young person, to enter into a written undertaking (for a specified period not exceeding 12 months) to do a specified thing, or to refrain from doing a specified thing, and, if the Court thinks fit, requiring the child or young person to be under the supervision of the Chief Executive or some other specified person or body during the period of the undertaking (s 53(1)(a));
(b)an order authorising or requiring examination and assessment of the child or young person (s 53(1)(b));
(c)an order placing the child or young person, for a specified period not exceeding 12 months, under the guardianship of the Chief Executive (s 53(1)(e));
(d)an order placing the child or young person under the guardianship of the Chief Executive until they attain 18 years of age (s 53(1)(g)); and
(e)an order granting custody of the child or young person to the Chief Executive (s 53(1)(j)).
Section 53(2) empowers the Court to make such interim orders in relation to an application under the Act as the Court thinks fit.
Section 53(3) provides that, subject to s 53, an order under s 53 has effect for the period specified in the order.
Section 54(1) empowers the Court, in proceedings under the Act, to make an order under s 53 with the consent of the parties to the proceeding. By s 54(2), an order may be made without consideration of the matters that the Court must otherwise consider in the proceeding.
Section 55(1) empowers the Court, on an application by a party to the proceedings, to vary or revoke an order under s 53. Section 55(2) empowers the Court, on an application by the Chief Executive, to discharge an order under s 53.
Section 56(1) provides that all proceedings under the Act must be dealt with expeditiously, with due regard to the degree of urgency of each particular case. By s 56(2), without limiting s 56(1), once a trial under the Act commences it should, as far as is practicable, continue without adjournment until all evidence has been presented, and judgment should be delivered as soon as practicable after all evidence has been presented. Section 56(3) empowers the Court, on an adjournment, to make such of the orders it is empowered to make under s 53 as it thinks appropriate (and such an order will have effect for the period of the adjournment).
Section 58 provides that a fact to be proved in proceedings under the Act (other than proceedings for an offence) is to be proved on the balance of probabilities.
Section 59(1) provides that s 59 applies to proceedings on an application to the Court for orders relating to a child or young person who is, pursuant to an order of the Court, under the guardianship or in the custody of the Chief Executive or another person or persons. By s 59(2), if in proceedings to which s 59 applies a person objects to the making of an order by the Court, the onus is on the person to prove to the Court that the order should not be made.
Section 60 provides:
If the Court dismisses an application for an order under section 53 (not being an application for a variation or revocation of an order), the Court may make such order for costs against the Crown in favour of any other party to the proceedings as the Court thinks fit.
Section 60 came into operation on 22 October 2018.
Chapter 10 is headed ‘Transfer of certain orders and proceedings between South Australia and other jurisdictions’ and comprises s 120 to s 144.
Section 120 states that the purpose of chapter 10 is to provide for the transfer of certain child protection orders and proceedings between South Australia and another State or a Territory of Australia or between South Australia and New Zealand:
(a)so that children who are in need of protection may be protected despite moving from one jurisdiction to another; and
(b)so as to facilitate the timely and expeditious determination of court proceedings relating to the protection of a child.
Section 126(1) provides that any person who is required to be notified of a decision of the Chief Executive to transfer a child protection order to a participating State under part 2 of chapter 10 may apply to the Court for a review of the decision. By s 126(8), on a review each party to the proceedings is to bear their own costs unless the Court considers that ‘some other order should be made to do justice between the parties’.
Section 60 and s 126(8) are the only provisions of the Safety Act with respect to costs.
The relevant framework of the Youth Court Act 1993 (SA)
Section 4 of the Youth Court Act 1993 (SA) (the Youth Court Act) established the Youth Court.
Section 7 sets out the jurisdiction of the Court. By s 7(a), the Court has jurisdiction to hear and determine proceedings under the Children’s Protection Act 1993 (SA) and the Safety Act.
Section 18(1) provides that the Court may, on the application of a party to proceedings or on its own initiative, issue a summons requiring a person to appear before the Court at a specified time and place to give evidence or to produce evidentiary material (or both).
Section 22(1) provides, relevantly, that a party to proceedings in the Court may, in accordance with the rules of the appellate court, appeal against any judgment given in the proceedings.
Section 22(3) provides that, on the appeal, the appellate court may exercise any one or more of the following powers:
(a)it may confirm, vary or quash the judgment subject to the appeal and, if the Court thinks the interests of justice so require, it may vary or quash any other judgment given in the same or related proceedings;
(b)it may remit the matter for hearing or further hearing;
(c)it may make any other order (including an order for costs) that may be necessary or desirable in the circumstances.
Section 32 provides for the making of rules of the Court.
Section 32(1) provides:
Rules of the Court may be made—
(a)regulating the business of the Court and the duties of the various officers of the Court;
(b)regulating the custody and use of the Court’s seals;
(ba)regulating the making of bail applications, including limiting the making of bail applications to the Court in circumstances where the application may be made to another court;
(c)regulating the practice and procedure of the Court;
(d)regulating the form in which evidence is taken or received by the Court;
(e)regulating costs;
(f)dealing with any other matter necessary or expedient for the effective and efficient operation of the Court.
Section 32(2) specifies that the rules may be made by the Judge of the Court and the magistrates who are members of the principal judiciary of the Court. By s 32(3), rules of the Court take effect from the date of publication in the Gazette or some later date specified in the rules.
The relevant framework of the Youth Court (Care and Protection) Rules 2018 (SA)
Rule 4 of the Youth Court (Care and Protection) Rules 2018 (SA) (the Care and Protection Rules) provides that:
(a)the Care and Protection Rules apply to the ‘care and protection jurisdiction’ of the Youth Court; and
(b)the ‘care and protection jurisdiction’ of the Youth Court is also governed by the General Rules.
The term ‘care and protection jurisdiction’ is defined in rule 3(1) to mean the jurisdiction of the Youth Court under the Safety Act.
The relevant framework of the General Rules
Rule 4 of the General Rules provides, relevantly, that the General Rules apply to all jurisdictions of the Court unless otherwise stated and are to be read together with, relevantly, the Care and Protection Rules.
Rule 11(1) provides that the Court may on its own initiative or on application by any person make any order that it considers appropriate in the interests of justice.
Rule 11(2)(q) states ‘[f]or example, the Court may … make any order as to costs’.
Rule 11(2) came into operation on 14 May 2020.
By rule 15(9), a witness summons that is vexatious, oppressive or an abuse of process may be set aside by the Court on application by a party or person with sufficient interest.
Counsel for the appellant’s submissions
As to ground 2, concerning the appellant’s application for costs in respect of the Principal Application, counsel for the appellant submitted that there were two sources of power to award costs against the Crown on an unsuccessful application by the Chief Executive for an order under s 53 of the Safety Act, namely s 60 of the Safety Act and rule 11(2)(q) of the General Rules.
It was submitted that the Youth Court had power under either or both of those provisions to entertain the Principal Application. It was also submitted that if (contrary to the appellant’s submission) the power under s 60 had not been enlivened, the Court had power under rule 11(2)(q) to award costs to the appellant, and the Court should have considered the exercise of that power.
Counsel contended that, in construing s 60, the Senior Judge treated the term ‘application’ in s 60 as meaning the ‘proceeding’, thus conflating the two terms. It was argued that the Safety Act draws and maintains a distinction between a ‘proceeding’ or ‘proceedings’, on the one hand, and an ‘application’, on the other. In particular, it was argued that the term ‘application’ is used consistently in the Safety Act to mean ‘the vehicle by … which the jurisdiction of the Court is invoked’ and the term ‘proceeding’ is used consistently to mean ‘the process by which the jurisdiction of the Court, once initiated by the application, is exercised’. Counsel submitted that the Youth Court may dismiss an application, yet make other orders under s 53, including interim orders, not sought by the application. This may result in the ‘proceeding’ continuing (as in the present case), even though the ‘application’ seeking a particular order under s 53 is refused. It was submitted that the Senior Judge erred in treating the dismissal of the ‘application’ referred to in s 60 as requiring the termination of the ‘proceeding’. Counsel argued that, in the present case, the relevant ‘dismissal’, for the purposes of s 60, was the refusal to make the (only) order sought by the Chief Executive in the application; that is, the long‑term order. Section 60 does not require the termination of the ‘proceeding’. The phrase ‘[I]f the Court dismisses an application’ in s 60 means ‘dismisses an application in the proceedings’.
Counsel contended that:
(a)The Principal Application sought only one order, namely a long‑term order in relation to the appellant’s three children.
(b)On 27 November 2020, the Senior Judge refused to make the long‑term order sought by the Chief Executive. Her Honour said, when publishing her written reasons, ‘I have refused the application of the Chief Executive’.
(c)It was not material that the Senior Judge made an interim order. The critical point is that the ‘application’ of the Chief Executive was dismissed, even though the ‘proceeding’ was not terminated.
(d)The Senior Judge did not distinguish between an ‘application’ and a ‘proceeding’ and, consequently, the formal orders made by the Senior Judge on 27 November 2020 are properly to be construed as adjourning the ‘proceeding’ which had been initiated by the Principal Application, but not terminating the ‘proceeding’ by the disposal of the Principal Application.
(e)The Senior Judge did not make the order sought by the Chief Executive in the Principal Application and it therefore follows that the appellant had discharged the onus imposed on her by s 59 of the Safety Act.
(f)The ‘proceeding’ initiated by the Principal Application remained on foot so that, in the exercise of the jurisdiction conferred on her by s 53(1) of the Safety Act, the Senior Judge could then make other orders directing a different course for the ‘proceeding’, namely the interim 12 month guardianship order with a referral to the Reunification Court. Thereafter, a long‑term order could only be sought by an application under s 55 of the Safety Act to vary the existing orders made under s 53. No long‑term order was ever made.
Counsel submitted that, in any event, even if the discretionary power under s 60 was not enlivened, there was a concurrent discretionary power under rule 11(2)(q) to award costs to the appellant in respect of the Principal Application. Rule 11(2)(q) confers power on the Youth Court to make ‘any order as to costs’. Rule 4 of the Care and Protection Rules provides that the ‘care and protection jurisdiction’ (that is, the jurisdiction of the Youth Court under the Safety Act) is ‘also governed by’ the General Rules, and that reference to the General Rules necessarily includes rule 11.
Accordingly, so it was submitted, the Youth Court had power to make any order as to costs in proceedings under the Safety Act, including an order awarding costs to the appellant in respect of the Principal Application.
As to ground 1, concerning the appellant’s application for costs in respect of the Interlocutory Application, counsel for the appellant submitted that the Youth Court had power under rule 11(2)(q) of the General Rules (read with rule 3(1) of the Care and Protection Rules) to award costs to the appellant in respect of the Interlocutory Application.
Counsel contended that:
(a)The Youth Court has jurisdiction to hear and determine proceedings under the Safety Act.
(b)Section 32(1)(e) of the Youth Court Act confers power to make rules of Court ‘regulating costs’.
(c)By rule 4 of the General Rules, the General Rules ‘apply to all jurisdictions of the Court unless otherwise stated and are to be read together with the [Care and Protection Rules]’.
(d)By rule 4 of the Care and Protection Rules, the Care and Protection Rules apply to the care and protection jurisdiction of the Court which is ‘also governed by’ the General Rules.
(e)Pursuant to rule 11 of the General Rules, the Court has power ‘[to] make any order that it considers appropriate in the interests of justice’ (rule 11(1)), including ‘any order as to costs’ (rule 11(2)(q)).
(f)There is nothing in the Care and Protection Rules which contradicts the power of the Court under the General Rules to make any order as to costs.
It was submitted that the witness summons was issued by the appellant in connection with the Principal Application and in the care and protection jurisdiction of the Youth Court pursuant to s 18 of the Youth Court Act, as regulated by rule 15 of the General Rules. Pursuant to rule 15, a witness summons that is ‘vexatious, oppressive or an abuse of process’ may be set aside by the Court, in whole or in part.
The Senior Judge had power to entertain the appellant’s application for costs in respect of the dismissal of the Interlocutory Application, and her Honour should have considered the exercise of that power.
Counsel for the Chief Executive’s submissions
Counsel for the Chief Executive noted that the Youth Court Act does not confer on the Youth Court a general power to award costs. Section 22(3) empowers the Youth Court to award costs on an appeal where the Judge of the Court sits in the Youth Court’s appellate jurisdiction. Section 32(1) empowers the Judge of the Youth Court and the magistrates who are members of the principal judiciary of the Court to make rules of Court, including rules of Court ‘regulating costs’. It was submitted that the absence of an express conferral of power to order costs generally is significant.
As to ground 2, concerning the appellant’s application for costs in respect of the Principal Application, counsel for the Chief Executive submitted that the Safety Act exhaustively stated the Youth Court’s power with respect to costs in care and protection proceedings.
By s 60 of the Safety Act, the Youth Court has a discretion to award costs against the Crown in favour of any other party to the proceedings as the Court thinks fit. Critically, so it was submitted, this discretion only arises upon dismissal of an application for an order under s 53 (not being an application for a variation or revocation of an order).
It was submitted that the Senior Judge did not erroneously construe the term ‘application’ in s 60 to mean ‘proceeding’. An application, in the context of the Safety Act, is the formal invocation of the Youth Court’s jurisdiction. The dismissal of an application occurs when the Court determines that the application is concluded with no substantive relief being granted. It was submitted that, for the purposes of s 60, the dismissal of the application necessarily terminates the proceeding because the Youth Court (as an inferior statutory court) cannot exercise jurisdiction in the absence of an application for an order under s 53.
Counsel contended that the word ‘dismisses’ in s 60 conveys more than refusal of the specific order sought by the applicant. The Youth Court dismisses an application, for the purposes of s 60, when the Court determines that no relief is to be granted on the application.
It was submitted that, for present purposes, all of the powers in s 53 are exercisable only ‘on an application under this Act’. Both the chapeau to s 53(1) and the power to make interim orders in s 53(2) are expressly conditioned as arising upon ‘an application under this Act’. Thus, so it was submitted, the Safety Act expressly limits the exercise of the Youth Court’s powers to circumstances where there is an application. There is no statutory power for the Youth Court to make a care and protection order in the absence of an application. The Court may not act of its own motion.
It was also submitted that, on an application, s 53 confers on the Youth Court a broad discretion to make a range of orders where the Court is satisfied that it is appropriate to do so. The Youth Court is not confined to making the order sought in the application. The Safety Act does not require specific factual matters to be satisfied before an order may be made. The criteria for making the application and the grounds of the application are relevant in deciding whether it is appropriate to make an order.
Counsel noted that the Reunification Court is ‘a case management tool’ used by the Youth Court to promote and monitor attempts to reunify families during the period of an interim order. The Youth Court’s practice is to refer an application ‘into’ or ‘out of’ the Reunification Court. When a matter is referred ‘out of’ the Reunification Court, because reunification is no longer being pursued, the practice is for the Chief Executive to file an amended application. However, if reunification is successful, as it was in the present case, the Youth Court’s practice is to note that the interim order is to lapse. In such cases, the Chief Executive’s application is never finally determined. The Chief Executive simply elects not to pursue the matter. When that occurs, the Court has not finally determined the rights of the parties. In particular, the Court has not dismissed the application.
Counsel argued that the limited power in s 60 to award costs recognises the Chief Executive’s obligations under the Safety Act and the ‘public interest nature’ of the Chief Executive’s role in the child protection system. The Chief Executive is required to act where she considers that children are at risk of harm. The Chief Executive is also required to have regard to the fact that early intervention, where children and young people may be at risk, is a priority, and that action should be taken in a timely manner and as early as possible to promote permanence and stability. The Parliament, having regard to the positive obligation placed upon the Chief Executive to take action, has significantly limited the circumstances in which the Crown may be ordered to pay costs.
It was submitted that, having regard to the legislative context and apparent purpose of the Safety Act as a whole, there is a proper basis to adopt a strict construction of the power in s 60 to award costs. In particular, where some substantive relief on an application is granted by the Youth Court, it cannot be concluded that the Court has dismissed the application for the purposes of s 60. The application is the originating process which initiates the proceeding and enlivens the Youth Court’s jurisdiction. It is only when the application is dismissed (that is, the Youth Court formally determines that no substantive relief should be made on the application pursuant to s 53) that the power in s 60 to award costs is enlivened.
Counsel referred to the orders made by the Senior Judge on 27 November 2020 and submitted that they comprised an order adjourning the hearing of the Chief Executive’s application to the Reunification Court and an interim order under s 53(2) of the Safety Act. According to counsel, it is plain from the face of the orders that the Chief Executive’s application remained on foot. The Senior Judge’s use of the word ‘refused’, during the hearing at which the orders were made, cannot determine the legal effect of the orders. Further, her Honour’s use of the word ‘refused’ is inconsistent with the manner in which her Honour exercised her power.
It was submitted that it was unnecessary for the Youth Court to make any factual findings or formally to dismiss the Chief Executive’s request for a long‑term order to enable the Court to make other orders pursuant to s 53. The characterisation of the Court’s orders as including an interim order under s 53(2), rather than a final order under s 53(1), is supported by the Court’s practice of referring a matter ‘into’ or ‘out of’ the Reunification Court.
Counsel argued that, in the present case, the Chief Executive could have sought to have the matter referred ‘out of’ the Reunification Court, if reunification was no longer possible or, alternatively, the Chief Executive could have sought to have the interim order extended, if the appellant was making good progress. That is consistent, so it was submitted, with the Chief Executive’s application remaining on foot in support of the exercise of power in the Reunification Court.
It was submitted that the power to make interim orders is conferred ‘in relation to an application’. There is no conferral of power to make interim orders in the absence of an application. The use of the word ‘interim’ means that the power, when exercised, is to make an order for an intervening period. The power to make an interim order is for a period of time while an application remains on foot.
Counsel contended that, in the present case, the Youth Court did not finally determine the Chief Executive’s application. Instead, the Youth Court adjourned the matter and made an interim guardianship order. Consequently, the Youth Court retained jurisdiction to continue to hear the matter.
In the circumstances, the necessary precondition in s 60 was not met and the discretion to award costs in relation to the Principal Application was not enlivened.
Counsel submitted that, in the absence of a general power in the Youth Court Act to award costs, the power under s 32(1) of the Youth Court Act to make rules of Court ‘regulating’ costs is an insufficient basis to imply a power to make rules ‘to generally order costs’.
It was submitted that the rule making power to ‘regulate’ costs merely empowers the Youth Court to make rules ‘directed to the exercise of its otherwise existing costs powers’.
Counsel argued that rule 11 of the General Rules is expressed as a broad power to make orders in the nature of case management directions, ‘being orders within the exercise of its otherwise existing jurisdiction’. It is not expressed to be a source of power. It was argued that the reference to costs in rule 11(2)(q) is an example of a type of order that the Youth Court could make. It is not a conferral of power to make that order.
It was submitted that, on a proper construction of s 32(1) of the Youth Court Act, the General Rules cannot provide an independent source of power to award costs.
Alternatively, it was submitted that if the General Rules can operate to empower the making of a costs order in care and protection proceedings, the structure of the Safety Act together with the nature of the Youth Court, support the conclusion that the power as to costs in s 60 of the Safety Act is an exhaustive statement of the Youth Court’s powers with respect to costs in matters arising under the Safety Act. In other words, the power in s 60 covers the field in which costs orders may be made in care and protection proceedings.
Accordingly, so it was submitted, the Senior Judge determined, correctly, that her Honour had no power to award costs with respect to the Principal Application.
As to ground 1, concerning the appellant’s application for costs in respect of the Interlocutory Application, counsel for the Chief Executive submitted that the Senior Judge found, correctly, that the power in s 60 of the Safety Act to award costs was not enlivened with respect to the Interlocutory Application. Counsel reiterated her submission that the Youth Court does not have any general power to award costs and that s 60 covers the field in which costs orders may be made in care and protection proceedings.
In the circumstances, so it was submitted, the Youth Court had no power under s 60 or rule 11(2)(q) to make a costs order with respect to the Interlocutory Application.
The common law liability of the Crown for legal costs in proceedings
At common law, the general rule is that the Crown neither pays nor receives legal costs in proceedings to which the Crown is a party. See Johnson v The King;[1] Attorney‑General of Queensland v Holland.[2]
[1] Johnson v The King [1904] AC 817, 825 (Lord Macnaghten, Lord Davey, Lord Robertson & Lord Lindley).
[2] Attorney‑General of Queensland v Holland [1912] HCA 26; (1912) 15 CLR 46, 49 (Griffith CJ).
In South Australia, the general common law rule was abrogated by s 7 of the Crown Proceedings Act 1972 (SA) (repealed) and by s 5 of the Crown Proceedings Act 1992 (SA).
Relevant principles of statutory interpretation
The focus of statutory interpretation is upon the text of the provisions having regard to their context and purpose.
The statutory text is the surest guide to Parliament’s intention. However, a decision as to the meaning of the text requires consideration of the context, in its widest sense, including the general purpose and policy of the provision. See Project Blue Sky Inc v Australian Broadcasting Authority;[3] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT);[4] Travelex Ltd v Federal Commissioner of Taxation;[5] SZTAL v Minister for Immigration and Border Protection.[6]
[3] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69] (McHugh, Gummow, Kirby & Hayne JJ).
[4] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27 [47] (Hayne, Heydon, Crennan & Kiefel JJ).
[5] Travelex Ltd v Federal Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510 [82] (Crennan & Bell JJ).
[6] SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 [14] (Kiefel CJ, Nettle & Gordon JJ).
The context includes the existing state of the law, the history of the legislative scheme and the mischief to which the statute is directed. See CIC Insurance Ltd v Bankstown Football Club Ltd.[7]
[7] CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey & Gummow JJ).
An examination of legislative history and extrinsic materials is not an end in itself. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. See Federal Commissioner of Taxation v Consolidated Media Holdings Ltd;[8] Alphapharm Pty Ltd v H Lundbeck A/S.[9]
[8] Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 [39] (French CJ, Hayne, Crennan, Bell & Gageler JJ).
[9] Alphapharm Pty Ltd v H Lundbeck A/S [2014] HCA 42; (2014) 254 CLR 247 [121] (Kiefel & Keane JJ).
The purpose of legislation must be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the relevant provisions. See Certain Lloyd’s Underwriters v Cross.[10] The intended reach of a legislative provision is to be discerned from the language of the provision and not by making an a priori assumption about its purpose. See Minister for Employment and Workplace Relations (Cth) v Gribbles Radiology Pty Ltd.[11]
[10] Certain Lloyd’s Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 [26] (French CJ & Hayne J).
[11] Minister for Employment and Workplace Relations (Cth) v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194 [21] (Gleeson CJ, Hayne, Callinan & Heydon JJ).
Section 14(1) of the Legislation Interpretation Act 2021 (SA) provides that ‘[i]n interpreting a provision of an Act or a legislative instrument, the interpretation that best achieves the purpose or object of the Act or the instrument (whether or not that purpose or object is expressly stated in the Act or instrument) is to be preferred to any other interpretation’. The direction in s 14(1) that one interpretation be preferred to another applies only where two interpretations are otherwise open. If the ordinary meaning conveyed by the statutory text is to be modified by reference to the purpose or object of the provision, the modification must be able to be identified precisely as that which is necessary to give effect to that purpose or object and it must be consistent with the text otherwise adopted by the draftsperson. Section 14(1) requires a court to interpret an Act or a legislative instrument, and not rewrite it by reference to its purpose or object. See Mills v Meeking.[12]
[12] Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214, 235 (Dawson J).
Inconsistency between a statute and delegated legislation
In Ashton v Commonwealth of Australia,[13] Kiefel J made these observations concerning the ambit of a statutory power to make regulations:
… regulations made under an Act are to fulfil the plan or purpose which the provisions of the Act have laid down: Shanahan v Scott (1957) 96 CLR 245 at 254. They cannot go outside the field which the Act marks out and may not vary or depart from the provisions of the Act: Morton v Union Steamship Co of New Zealand Ltd (1951) 83 CLR 402 at 410 (see also De L v Director-General, Department of Community Services (NSW) [No 2] (1997) 190 CLR 207 at 211; Harrington v Lowe (1996) 190 CLR 311 at 324-325; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 372-373 [34]-[35] and 380 [61]). The ambit of the power is to be ascertained from the character of the statute and the nature and content of its provisions: Morton v Union Steamship Co at 410.
[13] Ashton v Commonwealth of Australia [2003] FCA 92; (2003) 126 FCR 297.
Delegated legislation (relevantly, in the present case, regulations and rules of court) will be invalid if the delegated legislation is repugnant to or inconsistent with the Act under which the delegated legislation is made or another statute or the general law. See White v Morley;[14] Gentel v Rapps;[15] Re The Corporation of the City of Port Adelaide; Ex parte Groom;[16] Re Lynch; Ex parte Reid;[17] R v Minister of State of Interior;[18] Webster v McIntosh.[19]
[14] White v Morley [1899] 2 QB 34, 37 (Darling J).
[15] Gentel v Rapps [1902] 1 KB 160, 166 (Channell J).
[16] Re The Corporation of the City of Port Adelaide; Ex parte Groom [1922] SASR 35, 43 ‑ 45 (Murray CJ; Gordon J agreeing).
[17] Re Lynch; Ex parte Reid (1943) 43 SR (NSW) 207, 215 (Jordan CJ).
[18] R v Minister of State of Interior (1972) 20 FLR 449, 457 ‑ 458 (Fox J).
[19] Webster v McIntosh (1980) 49 FLR 317, 320 ‑ 321 (Bennan J; Deane & Kelly JJ agreeing).
Delegated legislation will be repugnant to or inconsistent with the Act under which the delegated legislation is made:
(a)if there is direct inconsistency between the manner in which the delegated legislation and the manner in which the Act deals with a particular subject matter; or
(b)if it was plainly intended that the Act should cover the field in relation to the particular subject matter or the relevant rights and duties.
See Cullis v Ahern;[20] Morton v Union Steamship Company of New Zealand Ltd;[21] R v Commissioner of Patents; Ex parte Martin;[22] Tucker v Dickson;[23] Re City Area Leases Ordinance 1936 and Axiom Pty Ltd;[24] Harrington v Lowe.[25]
[20] Cullis v Ahern [1914] HCA 59; (1914) 18 CLR 540, 543 (Griffith CJ; Isaacs & Powers JJ agreeing).
[21] Morton v Union Steamship Company of New Zealand Ltd [1951] HCA 42; (1951) 83 CLR 402, 412 (Dixon, McTiernan, Williams, Webb, Fullagar & Kitto JJ).
[22] R v Commissioner of Patents; Ex parte Martin [1953] HCA 67; (1953) 89 CLR 381, 406 ‑ 407 (Fullagar J; Kitto & Taylor JJ agreeing).
[23] Tucker v Dickson (1981) 27 SASR 321, 329 (King CJ; Sangster J agreeing).
[24] Re City Area Leases Ordinance 1936 and Axiom Pty Ltd (1986) 83 FLR 259, 268 ‑ 270 (Kelly J).
[25] Harrington v Lowe [1996] HCA 8; (1996) 190 CLR 311, 324 ‑ 325 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh & Gummow JJ).
So, delegated legislation will be repugnant to or inconsistent with the Act under which the delegated legislation is made if, for example, the Act, on its proper construction, covers the whole ground in respect of which Parliament has legislated; in other words, the statute is intended as a complete statement of the law governing the particular subject matter or the relevant rights and duties.
Ordinarily, delegated legislation made under a later Act cannot override, alter or detract from the provisions of an earlier Act. See TN v Walford;[26] Goyma v Moore.[27]
[26] TN v Walford (1998) 148 FLR 78 [33] (Martin CJ).
[27] Goyma v Moore (1999) 154 FLR 298 [27] (Martin CJ).
However, on the assumption that it is constitutionally possible for the Parliament of a State to authorise the making of a regulation that would amend or repeal a provision of an earlier Act of the Parliament, an authority to that effect would require express language to enable a regulation made under a general power to amend or repeal a provision of an earlier Act of the Parliament. See De L v Director‑General New South Wales Department of Community Services [No 2].[28]
[28] De L v Director‑General New South Wales Department of Community Services [No 2] [1997] HCA 14; (1997) 190 CLR 207, 212 (Brennan CJ & Dawson J).
The merits of the appeals
We will deal, first, with the proper construction of s 60 of the Safety Act and its application (if any) in respect of the Principal Application and the Interlocutory Application.
It is convenient to reproduce s 60:
If the Court dismisses an application for an order under section 53 (not being an application for a variation or revocation of an order), the Court may make such order for costs against the Crown in favour of any other party to the proceedings as the Court thinks fit.
The words ‘application’ and ‘proceedings’, in their ordinary meaning, have a broad and variable connotation. When used in a statute those words take colour from the context.
Section 60 distinguishes between ‘an application’, on the one hand, and ‘the proceedings’, on the other. This distinction is also made in other provisions of chapter 6.
The ‘application’ with which s 60 is concerned is ‘an application for an order under section 53 (not being an application for a variation or revocation of an order)’.
Section 49 provides for an application to be ‘made’ by the Minister, the Chief Executive or a person authorised by the Chief Executive for an order under s 53.
By empowering the Court to make an order for costs against the Crown, s 60 assumes that, in making an application for an order under s 53 (not being an application for a variation or revocation of an order), the Minister holds office under the Crown and the Chief Executive or a person authorised by the Chief Executive is acting in the capacity of a servant or agent of the Crown.
Various provisions of s 50 also refer to an application being ‘made’ for an order under s 53.
Section 52 provides for a ‘copy of an application’ for an order under s 53 to be served personally on specified people (s 52(1)); for a ‘copy of an application’ to be endorsed with specified particulars (s 52(2)); and for the circumstance where it is not reasonably practicable to serve a ‘copy of an application’ personally on a party (s 52(3)). Section 52(4) prohibits the Court from hearing ‘an application for an order under section 53’ in specified circumstances. Section 52(5) empowers the Court, in specified circumstances, to dispense with service under s 52 or to reduce the period between service and the time for ‘the hearing of the application’.
It is apparent, upon an examination of the provisions of chapter 6, that the term ‘application’ in chapter 6 sometimes refers to the document by which the jurisdiction of the Court is invoked (for example, s 52(1), (2) and (3)) and sometimes refers to the claim made in the document for an order under the Act (for example, s 52(4) and (5)).
In our opinion, the text of s 60, having regard to chapter 6 as a whole, indicates that the ‘application’ referred to in s 60 is the claim made in the document by which the jurisdiction of the Court is invoked for an order under s 53 (not being an application for a variation or revocation of an order).
The ‘proceedings’ with which s 60 is concerned are the proceedings between the person who is the applicant for an order under s 53 (not being an application for a variation or revocation of an order) and the other party or parties to those proceedings.
The document by which the jurisdiction of the Court to make an order under s 53 (not being an order for a variation or revocation of an order) is invoked commences the ‘proceedings’ referred to in s 60.
If an ‘application’ referred to in s 60 (being the claim made in the document by which the jurisdiction of the Court is invoked for an order under s 53, not being an order for a variation or revocation of an order) is ‘dismissed’, the ‘proceedings’ referred to in s 60 will in consequence come to an end. The Court does not have jurisdiction to make an order under s 53 in the absence of a subsisting application for an order under s 53.
If there is a subsisting application for an order under s 53, the Court’s power to make an order under s 53 is not confined to making the specific order sought by the applicant either in the application or later (for example, at the trial of the application). If there is a subsisting application for an order under s 53, the Court may decide upon the appropriate order to be made under s 53 having regard to the purposes of chapter 6 (including, in particular, the criteria specified in s 50), the specific grounds on which the application was made and the facts and circumstances found by the Court in connection with the application.
Section 51(2) refers to the Court being ‘satisfied in any proceedings that it should make an order under section 53 binding on a person who is not a party to the proceedings’ and empowers the Court to join that person ‘as a party to the proceedings’. Section 51(3) refers to the Court allowing specified persons a reasonable opportunity to make representations to the Court ‘in any relevant proceedings’.
Section 54(1) empowers the Court ‘in proceedings under [the Safety Act]’ to make an order under s 53 with the consent ‘of the parties to the proceeding’.
Section 55(1) empowers the Court, ‘on an application by a party to the proceedings’, to vary or revoke an order made under s 53.
Section 56(1) requires that ‘[a]ll proceedings under [the Safety Act]’ be dealt with expeditiously.
Section 57 provides, amongst other things, that, subject to the Safety Act, ‘in any proceedings under [the Safety Act]’ the Court is not bound by the rules of evidence.
By s 58, a fact to be proved ‘in proceedings under the [Safety Act] (other than proceedings for an offence)’ is to be proved on the balance of probabilities.
Section 59(1) states that s 59 applies ‘to proceedings on an application to the Court’ for specified orders.
In our opinion, the text of s 60 and the other provisions of chapter 6 which we have mentioned indicate that the ‘proceedings’ referred to in s 60 comprise all procedural and substantive steps taken in connection with the exercise by the Court of the jurisdiction that has been invoked by the application.
Section 60 confers on the Court the discretionary power to make an order for costs against the Crown in favour of any other party to ‘the proceedings’ if the Court ‘dismisses [the] application for an order under section 53’.
The word ‘dismiss’, in the sense of the dismissal of an application made to a court, connotes the termination of the application. When used in a statute that word takes colour from the context.
The meaning of the phrase ‘dismisses [the] application for an order under section 53’ in s 60 must be determined having regard to the statutory context, including the distinction in s 60 between ‘an application’ and ‘the proceedings’ and the subject matter of s 60, namely the conferral on the Court of a discretionary power to make an order for costs against the Crown in favour of any other party to the proceedings.
The phrase ‘[i]f the Court dismisses [the] application for an order under section 53 (not being an application for a variation or revocation of an order)’ in s 60 concerns the termination by the Court of the claim made in the document by which the jurisdiction of the Court was invoked for an order under s 53.
There is no warrant in the text of s 60 or the statutory context for concluding that the Court will dismiss an application for an order under s 53, for the purposes of s 60, if the Court does not make the specific order under s 53 sought by the applicant but, instead, makes a different order under s 53. The phrase ‘[the] application for an order under section 53 (not being an application for a variation or revocation of an order)’ in s 60 describes the nature of the application to which s 60 applies. The nature of the application, as described in s 60, is not coextensive with the specific order sought by the applicant either in the application or later (for example, at the trial of the application).
In our opinion, the Court will dismiss an application, for the purposes of s 60, if the Court makes an order which has the legal effect of:
(a)terminating the Court’s jurisdiction to make an order under s 53, on the basis of the application, without the Court having made any substantive order under s 53 before the termination; and
(b)precluding the Court from reinstating the application and re-exercising the Court’s jurisdiction to make a substantive order under s 53 on the basis of the application.
If the Court makes a substantive order under s 53 in relation to an application for an order under s 53, the Court will not have dismissed the application, for the purposes of s 60, even if the proceedings continue without the Court making another substantive order.
Section 53(2) empowers the Court to make ‘interim orders in relation to an application under this Act’. An interim order is therefore made in relation to a subsisting application under the Act including, relevantly, a subsisting application for an order under s 53 (not being an application for a variation or revocation of an order). An interim order made under s 53(1) read with s 53(2) is a substantive order under s 53 in relation to an application for an order under s 53.
If there is a subsisting application for an order under s 53 and the Court makes an order that the matter be referred into the Reunification Court, with or without an interim order having been made under s 53(1) read with s 53(2), the Court will not have dismissed the application. In those circumstances, the Court will retain jurisdiction to make an order under s 53, further or alternatively an interim order or another interim order under s 53(1) read with s 53(2), on the basis of the application, if the matter is not resolved in the Reunification Court and is referred out of the Reunification Court.
As we have mentioned, in the present case:
(a)On 26 February 2020, the Chief Executive made the Principal Application, pursuant to s 50 of the Safety Act. The Principal Application stated, in effect, that the order sought by the Chief Executive was an order under s 53(1)(g) of the Safety Act; that is, an order placing the appellant’s children under the guardianship of the Chief Executive until they attained 18 years of age.
(b)On 23 July 2020 and 12 October 2020, the Principal Application was tried before the Senior Judge.
(c)On 27 November 2020, the Senior Judge published written reasons in relation to the Principal Application. Her Honour decided not to make the long‑term order sought by the Chief Executive but, instead, proposed to make an interim order under s 53(1)(e) read with s 53(2) that the appellant’s children be placed under the guardianship of the Chief Executive for a period of 12 months and an order that the matter be referred to the Reunification Court.
(d)On 27 November 2020, when she published her written reasons, the Senior Judge said that she had ‘refused the application of the Chief Executive’ and proposed to make an interim order for 12 months.
(e)On 27 November 2020, after hearing from counsel, the Senior Judge made formal orders on the Principal Application as follows:
(i)the hearing of the Principal Application be adjourned to the Reunification Court on 3 March 2021 at 10.00 am; and
(ii)the appellant’s children be placed under the guardianship of the Chief Executive for a period of 12 months.
(f)Between 27 November 2020 and 3 November 2021 there were seven hearings in the Reunification Court in connection with the Principal Application.
(g)On 3 November 2021, the Youth Court extended, for a period of four months, the 12 month interim order that it made on 27 November 2020.
(h)On 26 March 2022, the extended interim order lapsed.
(i)By an application dated 23 March 2022, the appellant sought the award of costs against the Chief Executive that is in issue in these appeals.
We are satisfied, having regard to the Senior Judge’s written reasons published on 27 November 2020 and her Honour’s formal orders made on 27 November 2020, that the proper interpretation of her Honour’s statement on 27 November 2020 that she had ‘refused the application of the Chief Executive’ and proposed to make an interim order for 12 months, is that her Honour had decided, at least at that stage, not to make the specific order under s 53 sought by the Chief Executive in the Principal Application but proposed, instead, to make an interim order under s 53.
In any event, whether the Court dismissed the Principal Application, for the purposes of s 60 properly construed, depends upon the formal orders on the Principal Application which the Senior Judge made on 27 November 2020 (having regard to her Honour’s written reasons published on 27 November 2020) and not upon her Honour’s statement, when she published her written reasons, that she had ‘refused the application of the Chief Executive’.
The legal effect of the formal orders on the Principal Application that were made on 27 November 2020 (having regard to the written reasons published on 27 November 2020) was:
(a)to make an interim order under s 53(1)(e) read with s 53(2) that the appellant’s children be placed under the guardianship of the Chief Executive for a period of 12 months; and
(b)to adjourn the hearing of the Principal Application into the Reunification Court.
Those orders did not have the legal effect of:
(a)terminating the Court’s jurisdiction to make an order under s 53 on the basis of the Principal Application; or
(b)precluding the Court from exercising the Court’s jurisdiction to make an order under s 53, on the basis of the Principal Application, if the matter was not resolved in the Reunification Court and was referred out of the Reunification Court.
The Court did not, on 27 November 2020 or on any later date, ‘dismiss’ the Principal Application for an order under s 53, within s 60 properly construed, because on 27 November 2020 the Court made a substantive order in relation to the Principal Application; namely, the interim order under s 53(1)(e) read with s 53(2).
In the circumstances, the Court’s discretionary power under s 60 to make an order for costs against the Crown and in favour of the appellant in relation to the Principal Application was not enlivened. As we have explained, it is not to the point that the order made was not the order sought. It is also not to the point that the appellant had indicated her willingness to consent to an order that reflected the order ultimately made. Although the appellant’s willingness to consent would have been highly relevant upon any exercise of a discretion as to costs, her willingness did not enliven that discretion.
The Interlocutory Application was an application of an interlocutory character made by the Chief Executive in the pending proceedings commenced by the Principal Application. The Interlocutory Application was not separate from or independent of the Principal Application. The Court’s discretionary power under s 60 was not enlivened in relation to the Principal Application because the Court did not dismiss the Chief Executive’s application for an order under s 53. Consequently, there was no scope for the operation of s 60 in relation to the Interlocutory Application.
We turn now to rule 11(2)(q) of the General Rules. It is unnecessary, in dealing with the appellant’s case based on rule 11(2)(q), to decide whether, in the absence of a general power in the Youth Court Act to award costs, the power under s 32(1) of the Youth Court Act to make rules of Court ‘regulating’ costs is an insufficient basis to imply a power to make rules ‘to generally order costs’.
We will deal with the appellant’s case based on rule 11(2)(q) by:
(a)assuming (without deciding) that rule 11(2)(q) of the General Rules was made in the valid exercise of the power under s 32(1) of the Youth Court Act; and
(b)determining the proper construction of rule 11(2)(q) of the General Rules and its application (if any) in respect of the Principal Application and the Interlocutory Application.
As we have mentioned:
(a)Section 6 of the Safety Act is concerned with the manner in which the Safety Act is to interact with other Acts and laws. By s 6(1), relevantly, the Safety Act is to work in conjunction with all of the laws of the State to further and achieve the aims set out in chapter 2 of the Safety Act. By s 6(2), the Safety Act ‘is in addition to, and does not derogate from, any other Act or law’.
(b)Section 32(1) of the Youth Court Act provides, relevantly, that rules of the Court may be made ‘regulating costs’ (s 32(1)(e)).
(c)Section 32(2) of the Youth Court Act specifies that the rules may be made by the Judge of the Court and the Magistrates who are members of the principal judiciary of the Court.
(d)Rule 4 of the Care and Protection Rules provides, in effect, that the Care and Protection Rules apply to the jurisdiction of the Youth Court under the Safety Act and that this jurisdiction of the Youth Court is also governed by the General Rules.
(e)Rule 4 of the General Rules provides, relevantly, that the General Rules apply to all jurisdictions of the Court unless otherwise stated and are to be read together with, relevantly, the Care and Protection Rules.
(f)Rule 11(1) of the General Rules provides that the Court may on its own initiative or on application by any person make any order that it considers appropriate in the interests of justice.
(g)Rule 11(2)(q) of the General Rules states ‘[f]or example, the Court may … make any order as to costs’.
(h)Rule 11(2) of the General Rules came into operation on 14 May 2020.
Section 60 of the Safety Act came into operation before rule 11(2) came into operation.
In our opinion, s 60 of the Safety Act contains an exhaustive statement of the circumstances in which the Youth Court may make an order for costs against the Crown in respect of an application made by the Minister, the Chief Executive or a person authorised by the Chief Executive for an order under s 53 of the Safety Act. We are of that opinion for the following reasons. Section 60 does not confer on the Court a general discretionary power to make orders for costs in relation to the proceedings as the Court thinks fit. Rather, s 60 confers a limited discretionary power with respect to costs. The power extends only to making an order for costs against the Crown in favour of any other party. The power does not extend to making an order for costs against any other party in favour of the Crown. The Court’s power to award costs against the Crown is exercisable only if the Court has dismissed an application for an order under s 53 (not being an application for a variation or revocation of an order). Section 60 and s 126(8) are the only provisions of the Safety Act with respect to costs. Section 126(8) applies in relation to proceedings for a review of a decision of the Chief Executive to transfer a child protection order. These features of the Safety Act strongly support the conclusion that s 60 was intended to prescribe completely and exclusively the circumstances in which the Court may make an order for costs against the Crown where an application has been made for an order under s 53.
Further and in any event, rule 11(2)(q) of the General Rules is inconsistent with s 60 of the Youth Act in that s 60 confers a limited discretionary power with respect to costs whereas rule 11(2)(q) confers a general discretionary power with respect to costs. The limited nature of the power under s 60 is explained at [168] above. By contrast, rule 11(2)(q) does not contain any limitations of that character. Rule 11(2)(q) is a form of delegated legislation. It cannot override, alter or detract from s 60. Rule 11(2)(q) does not apply where an application has been made for an order under s 53 and an order for costs is sought against the Crown in respect of the application.
It is true that s 6(2) of the Safety Act provides that the Safety Act is in addition to, and does not derogate from, any other Act or law; rule 4 of the Care and Protection Rules provides, in effect, that the Care and Protection Rules apply to the jurisdiction of the Youth Court under the Safety Act and that this jurisdiction of the Youth Court is also governed by the General Rules; and rule 4 of the General Rules provides that the General Rules apply to all jurisdictions of the Court unless otherwise stated and are to be read with, relevantly, the Care and Protection Rules. However, in our opinion, the appellant’s case based on rule 11(2)(q) is not advanced by s 6(2) of the Safety Act, rule 4 of the Care and Protection Rules or rule 4 of the General Rules.
The apparent object of the stipulation in s 6(2) is that no provision of the Safety Act is to detract from any provision of any other Act or law and no provision of any other Act or law is to detract from any provision of the Safety Act. The provisions of the Safety Act, other Acts and other laws are to operate according to their terms and as a whole to achieve their purposes or objects. However, the general stipulation in s 6(2) cannot apply without qualification where a provision of the Safety Act and a provision of another Act or law, properly construed having regard to s 6(2), cannot operate harmoniously because the provisions are inconsistent or reveal a specific contrary intention.
We are satisfied, for the reasons we have given at [124]-[171] above, that s 60 of the Safety Act, properly construed having regard to the Safety Act as a whole (including s 6(2)), rule 4 of the Care and Protection Rules and rule 4 of the General Rules, prescribes, completely and exclusively, the circumstances in which the Court may make an order for costs against the Crown where an application has been made for an order under s 53. Section 60 reveals a specific intention (contrary to s 6(2)) to cover the field. Rule 11(2)(q) is inconsistent with s 60.
In the circumstances, the Court’s discretionary power under rule 11(2)(q) to make an order for costs did not apply in relation to the Principal Application. Further, for the reasons we have explained at [168] above, there was no scope for the operation of rule 11(2)(q) in relation to the Interlocutory Application.
Conclusion
We would grant the required extension of time and permission to appeal because the appeals raise an issue of general importance concerning the proper construction and application of s 60 of the Safety Act and rule 11(2)(q) of the General Rules. However, the grounds of appeal have not been made out and the appeals must therefore be dismissed.
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