PVS v Chief Executive Officer of the Department of Child Protection

[2009] WASCA 234

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   PVS -v- CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF CHILD PROTECTION [2009] WASCA 234

CORAM:   OWEN JA

BUSS JA

HEARD:   7 DECEMBER 2009

DELIVERED          :   7 DECEMBER 2009

PUBLISHED           :  22 DECEMBER 2009

FILE NO/S:   CACR 180 of 2009

BETWEEN:   PVS

Appellant

AND

CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF CHILD PROTECTION
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :McKECHNIE J

File No  :SJA 1135 of 2009

Catchwords:

Appeal - Application for leave to appeal - Pending proceedings in the Children's Court - Turns on own facts

Legislation:

Nil

Result:

Application for leave to appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     In person

Respondent:     Mr S B Watters

Solicitors:

Appellant:     In person

Respondent:     Department of Child Protection

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

Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488

1. OWEN & BUSS JJA: There are pending proceedings in the Children's Court of Western Australia involving the appellant, the respondent and the appellant's three children. In those proceedings, the respondent seeks a protection order (time‑limited) in relation to the children for two years pursuant to s 54 of the Children and Community Services Act 2004 (WA).

2. The pending proceedings are before Magistrate Patrick Hogan.  The appellant is presently appearing on her own behalf although she has been represented in the past and has, from time to time, taken legal advice.  The respondent and the appellant's children have independent legal representation.  On 11 ‑ 15 May 2009, 20 - 24 July 2009 and 16 - 19 November 2009, the respondent's case and the children's case were presented.  The proceedings resumed on 7 December 2009 for the purpose of the presentation of the appellant's case and the making of closing submissions.

3. Three issues of relevance have arisen in the pending proceedings.

4. First, on 16 November 2009, the appellant submitted to Magistrate Hogan that he should disqualify himself on the ground that he was 'unfairly biased' against her.  His Honour heard the application and, after receiving submissions from all of the parties, dismissed the application and continued to preside. 

5. Secondly, the appellant relied, in support of her application that Magistrate Hogan disqualify himself, on documents containing allegations made by her about witnesses who had been called by the respondent and had given evidence in the proceedings.  His Honour informed the appellant that unless she gave evidence in support of these allegations he could give them little weight.  The appellant apparently declined to give evidence.  She elaborated on this issue in pars 13 ‑ 16 of an affidavit sworn by her on 27 November 2009:

   13)Magistrate Hogan then asked if I would take the witness stand regarding some of the grounds of application.  These are being investigated by police.  This is my second ground of appeal.  I should not have been asked to take the witness stand regarding matters that are being investigated by the police as it might have prejudiced either myself, the investigation and/or for any other reason.  Indeed the police are also investigating allegations by DCP that I have partaken in criminal activity (denied) and my testimony could have affected or influenced that investigation.  This is error in fact or law.

   14)I am unrepresented in the children's court.  One of the children's lawyer's, Ruth Reader, stood up and advised me through the magistrate that I should seek legal advice before so testifying.  I asked for a five minute recess in order to phone a criminal lawyer who had been assisting me.  This was categorically denied.  This is the third ground of appeal, error in law or gross miscarriage of Justice.

   15)I did not know whether I should then testify.  As I was weighing it up, as I recall, magistrate Hogan then dismissed the application, based mainly on the grounds that I would not testify.  I may be wrong but I do not believe I said I would not testify.  However I am very traumatised and it may be that I did.  This is the fourth ground of appeal and is either error in fact or law or gross miscarriage of justice or denial of Natural Justice.

   16)I should have been allowed to seek legal advice and testify if so advised.

6. Thirdly, on 5 November 2009, Magistrate Stephen Vose made orders in relation to contact between the appellant and her children.  The appellant alleged that the respondent has, without justification, limited or restricted the contact which is permitted under his Honour's orders.  She asserts that she has sought to enforce these orders in the Children's Court.  Her allegation in relation to this issue is set out in par 20 of her affidavit sworn 27 November 2009:

   20)I then applied back to the children's court to enforce those orders before magistrate Vose, (appended hereto and marked with the letter 'I' is that application) and was advised that the children's court has no mechanism to enforce their own orders, that I must apply to the Supreme Court.  I was advised to apply to the Supreme Court to enforce those orders but was unable to find the legal means of doing so.  This then, in so far as it is possible is an application to enforce those orders and to find DCP in contempt of court.

The application before McKechnie J

1. On 27 November 2009, the appellant filed an appeal notice, SJA 1135 of 2009, in the Supreme Court.  She sought leave to appeal in relation to the three issues we have mentioned.  The appellant's appeal notice was supported by her affidavit of 27 November 2009.

2. The proceedings came before McKechnie J on 4 December 2009.  After hearing argument, his Honour dismissed the application for reasons which he delivered immediately and orally.  His Honour decided that he did not have jurisdiction to entertain the application.  After referring to s 41 and s 42 of the Children's Court of Western Australia Act 1988 (WA), his Honour said in relation to s 42:

   So that in my view, while not necessary to finally decide the limits of the section, the expression 'finding order of a decision' must contemplate either a final form of finding order or other decision or at the least, in accordance with Jenkins J's, an interim order.  On any view, in my opinion, the decision of the magistrate on the question as to whether he should disqualify himself does not fall within that phrase, and therefore I lack jurisdiction to deal with the issue.  It is simply not a matter, at this stage, appealable.  It may be that the magistrate is right or wrong and it may be that at the end of the trial it may or may not afford grounds for miscarriage of justice or error of law, but it is not a decision which I hold to be appealable.

   I am fortified by that view by the limited nature of the term 'discretion' under the Criminal Appeals Act, mindful that this is to be dealt with as if it was a matter of a decision under that Act and I think that the words in section 42 must be qualified in some way and do not include what I will refer to as rulings made in the course of trial and I regard a ruling whether or not to continue hearing the matter as a ruling, not a finding order or other matter under the section (ts 33).

3. McKechnie J referred, very briefly, to the merits on the assumption that, contrary to his view, he had jurisdiction:

   I have read the transcript. Even assuming, which I think is a matter of doubt, that such a matter would fall within section 36 of the Magistrates Court Act ‑ and I have considerable matter of doubt about it unless it falls within section 36(1)(c)(ii) but I leave that for another day because even assuming that there is power to make a review order, I would not make it on the material.

   I have read the transcript, I am familiar generally with the trial and have read other parts of the transcript.  I do not consider that this ruling deprived ‑ or this refusal for the adjournment has in any way deprived [the appellant] of her right to natural justice.  So for those reasons this application is dismissed (ts 34).

The appellant's application for leave to appeal to this court

1. On 4 December 2009, the appellant made application for leave to appeal to this court against McKechnie J's dismissal of her application.  The application for leave was supported by her affidavit sworn 4 December 2009.

2. On 7 December 2009, Wheeler JA granted a stay of the proceedings before Magistrate Hogan until 4.15 pm on that date.

3. The application for leave to appeal was heard by us on 7 December 2009.  At the conclusion of the hearing, we made these orders:

   (a)Leave to appeal refused.

   (b)Stay granted by Wheeler JA on 7 December 2009 discharged.

   (c)Application by children's legal counsel for leave to intervene or be heard dismissed.

   (d)No order as to costs.

   We said that we would publish reasons for decision at a later date.  These are our reasons.

The merits of the application for leave to appeal to this court

1. We will assume, without deciding, that the appellant was entitled to make application to McKechnie J for leave to appeal in relation to the three issues in question.  Also, we will assume, without deciding, that the appellant was entitled to make application to this court for leave to appeal against McKechnie J's decision.

2. It appears that the basis for the appellant's application that Magistrate Hogan disqualify himself was the existence of a reasonable apprehension of bias, and not the existence of actual bias.

3. In Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488, Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ stated the test to be applied in determining whether a judicial officer is disqualified by reason of the appearance of bias. Their Honours said:

   It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide (eg, Re Lusink; Ex parte Shaw (1980) 55 ALJR 12; 32 ALR 47; Livesey v NSW Bar Association (1983) 151 CLR 288; Vakauta v Kelly (1989) 167 CLR 568; Webb v The Queen (1994) 181 CLR 41).

   That test has been adopted, in preference to a differently expressed test that has been applied in England (cf Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451), for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done (cf R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at 259, per Lord Hewart CJ). It is based upon the need for public confidence in the administration of justice. 'If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision' (R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 263, per Barwick CJ, Gibbs, Stephen and Mason JJ). The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is 'a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial' (Vakauta v Kelly (1988) 13 NSWLR 502 at 527, per McHugh JA, adopted in Vakauta v Kelly (1989) 167 CLR 568 at 584 ‑ 585, per Toohey J) [11] ‑ [12].

4. In the present case, there were two reasons why we dismissed the appellant's application for leave to appeal against McKechnie J's decision concerning Magistrate Hogan's refusal to disqualify himself.  First, we were not satisfied, on the material before us, that the magistrate's decision was wrong or attended by sufficient doubt to justify a grant of leave.  Secondly, the application for leave to appeal seeks to challenge a decision made in the course of lengthy and ongoing proceedings for a protection order (time‑limited) in the Children's Court.  We were satisfied that it was not in the interests of justice to grant leave to appeal in such a case where the appellant does not, on the material before us, have reasonable prospects of success on the merits. 

5. As to the appellant's allegation that Magistrate Hogan denied her procedural fairness by failing to give her a reasonable opportunity to take legal advice or otherwise consider her position before deciding whether to give evidence in support of the allegations she had made about witnesses who had been called by the respondent and given evidence in the proceedings, we refused leave to appeal for reasons similar to those we have given in relation to his Honour's refusal to disqualify himself.  We were not satisfied, on the material before us, that there was a reasonably arguable case that his Honour denied the appellant procedural fairness.  Also, we considered that it was not in the interests of justice, in the context of a ruling made in the course of lengthy and ongoing proceedings, to grant leave, especially on an issue without apparent merit.

6. As to the appellant's allegation that the Children's Court has refused to enforce the orders made by Magistrate Vose on 5 November 2009, we refused leave to appeal for the following reasons.  First, it was not apparent from the material before us that there were reasonable prospects of establishing that the respondent has failed to comply with the contact orders made on 5 November 2009.  Secondly, the respondent's case in the proceedings before Magistrate Hogan closed on 24 July 2009.  Any unjustified limitation or restriction on the appellant's contact with her children that may have been caused or contributed to by the actions or omissions of the respondent since 5 November 2009, could not have had any material impact or effect upon the respondent's case or the appellant's case.  Thirdly, we were not satisfied that adequate steps had been taken by the appellant in relation to the alleged non‑compliance with the orders made on 5 November 2009.  If the appellant wishes to pursue this issue she should make a fresh application to Magistrate Vose or relist the application that was before his Honour on 5 November 2009, for the purpose of litigating the points in dispute.

7. It followed, from our decision to refuse leave to appeal, that the stay granted by Wheeler JA should be discharged and that it was unnecessary, in the circumstances, to grant the children's legal counsel leave to intervene or be heard.  Counsel for the respondent did not object to this court making no order as to costs.