Re Allegra

[2009] NSWSC 1091

CITATION:	Re Allegra [2009] NSWSC 1091
HEARING DATE(S):	29/09/09
JUDGMENT DATE :	15 October 2009
JURISDICTION:	Equity
JUDGMENT OF:	Forster J at 1
DECISION:	See paragraphs 44, 45, 52 of judgment.
CATCHWORDS:	Children and Young Persons (Care and Protection) Act - decisions of the Children's Court - appeal provisions to District Court not exhausted - application made in the Supreme Court for orders in the nature of certiorari - application refused.
LEGISLATION CITED:	Children and Young Persons (Care and Protection) Act 1998 (NSW) Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
CATEGORY:	Principal judgment
CASES CITED:	Ballam v Higgins (1986) 17 IR 131 Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 Craig v The State of South Australia (1994) 184 CLR 163 Hill v Green (1999) 48 NSWLR 161 NSW Breeding & Racing Stables Pty Ltd v Administrative Decisions Tribunal of New South Wales (2001) 53 NSWLR 559 R v Chief Constable of the Merseyside Police; Ex Parte Calveley [1986] QB 424 R v Epping and Harlow General Commissioners; Ex Parte Goldstraw [1983] 3 All ER 257 Re Frieda and Geoffrey (2009) 40 FamLR 608 Re Liam [2005] NSWSC 75 Re Louise and Belinda [2009] NSWSC 534 S v Department of Community Services [2002] NSWCA 151 Weinel v Judge Parsons (1994) 62 SASR 501
FILE NUMBER(S):	SC 4070/09
COUNSEL:	M. Anderson - for third defendant (Director General for the Department of Community Services) E. Lawson - for fourth defendant (the father) Submitting appearance - Bildura Children’s Court (first defendant)
SOLICITORS:	G. Potkonyak - (plaintiff) K. Shea - for second defendant ('Allegra')

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

FORSTER J

THURSDAY, 15 OCTOBER 2009

4070/09 RE ALLEGRA

JUDGMENT

1 HIS HONOUR: The plaintiff, to whom I shall refer as “the mother”, is the mother of the second defendant, to whom I shall refer as “the child”. The first defendant is the Children’s Court of New South Wales (who has filed a submitting appearance), the third defendant is the Director General of the Department of Community Services and the fourth defendant, to whom I shall refer as “the father”, is the father of the child.

Background

2 The child, who was born on 25 April 2003, and who is now just under six and a half years of age, was removed from the mother in May 2007. On 22 January 2008, pursuant to an application made by the Director General under section 61 of the Children and Young Persons (Care and Protection) Act 1998 (“the Act”), she was placed in the custody of the Minister and the father for a period of one year, whereafter parental responsibility for her was to devolve upon the father alone. As part of the orders made on 22 January 2008, various undertakings were given by each parent.

3 Specifically, the undertakings given by the mother on 22 January 2008 were as follows:

“Pursuant to Section 73(1)(a) the Court orders the acceptance of the following undertakings from [the mother] until [Allegra] attains the age of 18 years:-

(a) Not to attend and participate in contact with [Allegra] whilst under the influence of alcohol, illicit drugs or prescribed drugs taken other than in accordance with the terms and conditions of the prescription.

(b) Not to allow or permit [Allegra] to be exposed to any domestic violence, physical or verbal.

(c) Not to denigrate or criticise [the father] or his family to or in the presence of [Allegra].

(d) To exercise contact in accordance with the terms and conditions of the orders made herein or by a Court or competent jurisdiction.

(e) To engage and particiapte (sic) in counselling and therapy with her current Psychiatrist, Dr [XX], or his nominee and such other services as may be recommended, for as long as Dr [XX] or his nominee or such service deems appropriate.”

4 On 2 June 2008, the mother filed an application pursuant to section 90 of the Act, seeking leave to apply to rescind the orders of 22 January 2008 and to have the child restored to her care. On 19 June 2008, her application was withdrawn and dismissed.

5 On 23 September 2008 further orders were made, which orders included noting further undertakings given to the Court by the mother. The orders of 23 September 2008 are stated to have been made by consent. Those orders were in the following terms:

“The Court orders that:-

1. Pursuant to Section 90(7) the orders made on 22 January 2008 be varied by the inclusion of the following undertakings to be given by the mother:-


(f) To refrain from smoking around [Allegra] during contact.

(g) To ensure that [Allegra] is provided with healthy food during contact and to refrain from providing [Allegra] with excessive junk food including sugary foods.

(h) To follow all reasonable directions of the contact supervisor.

(i) Not to raise any concerns she has about the contact supervision in the presence of [Allegra].

(j) To refrain from discussing identifying features of the court proceedings with third parties except for the purpose of obtaining legal advice or therapeutic services.

2. That pursuant to Section 90 (7) order 7d be varied such that the father’s undertaking to inform the Department of Community Services of any intention to change his residential address or living arrangements for himself and or Allegra and not to make such change without consultation first taking place, shall expire on 22 January 2010.


Notations

A. The Court notes the intention behind these orders is to regularise and support a contact regime between [Allegra] and her mother following the difficulties that caused a Section 90 Application to be filed.

B. That the court notes that the Minister and the father have agreed that Ms [YY] is an appropriate supervisor for the purposes of Order 9 of the orders made on the 22 January 2008 (a copy of which is attached hereto).

C. The court notes that the Director General is not required to make any financial contribution to the cost of the supervision of contact.”

6 On 17 June 2009 the mother filed a further application pursuant to section 90 of the Act, seeking leave to apply for the rescission or variation of the orders made on 22 January 2008. That application for leave was heard by the Children’s Court on 24 July 2009 and was dismissed.

7 On 11 August 2009 the plaintiff filed her Summons in the proceedings before me seeking the following relief:

“1. That leave be granted to the plaintiff to apply out of time for the order (2) below

2. That the orders of the defendant of 23 September 2008 be removed to this Court and quashed by an order in the nature of certiorari

3. That a competent child psychologist be appointed for the purpose of examination of and the report on the behaviour and its cause(s) of the second defendant [Allegra]

4. That the psychologist in (3) above, or another suitable person, be appointed guardian ad litem of the second defendant

5. That the third defendant returns the “blue book” to the plaintiff

6. That the hearing of this summons be expedited.”

8 On 18 August 2009 an application for the relief sought in paragraphs 3 and 4 of the Summons came before Justice McDougall on an urgent basis. In that application, the mother sought to invoke this Court’s parens patriae jurisdiction.

9 His Honour declined to exercise this Court’s parens patriae jurisdiction for the reasons set out in his judgment of that day. A copy of those reasons is in the Court’s file. As a consequence, the only issue of substance left for determination in these proceedings is whether the relief claimed in paragraph 2 of the Summons should be granted.

10 Also on 18 August 2009, consent orders were made for the further conduct of the proceedings. The orders provided for the matter to be re-listed before the Registrar on 28 October 2009 for the allocation of a hearing date.

11 On 20 August 2009, that is to say two days after the hearing before McDougall J, the mother filed a Summons in the District Court of New South Wales seeking the following relief:

“1. Leave to appeal from the part of the decisions below, of 22 January 2008 and 23 September 2008, in relation to: Parental responsibility for, and Contact with, the child [Allegra].

2. Appeals allowed.

3. Orders dismissing the applications by the then applicant (now plaintiff/appellant) of the court below of 24 July 2009 be set aside.

4. That a qualified child psychologist be appointed to examine the child [Allegra] and determine, as far as possible, the causes of the child’s aggressive and sexualised behaviour.

5. That the hearing of the application for the order (4) above be expedited.

6. That the plaintiff/appellant be granted shared parental responsibility with the first defendant/respondent for the child [Allegra].

7. That the child [Allegra] resides approximately equal time with the plaintiff/appellant and the first defendant/respondent.”

The present application

12 By his Amended Notice of Motion, which was filed in Court, the father seeks the following substantive relief:

“3. That, pursuant to rule 13.4 of the Uniform Civil Procedure Rules, the proceedings be dismissed as an abuse of process in that:


a. The proceedings were not properly commenced; and

b. The relief claimed by the plaintiff is substantially the same relief claimed in the concurrent proceedings before the District Court.

4. That, pursuant to rule 13.4 of the Uniform Civil Procedure Rules, the proceedings be dismissed as frivolous or vexatious and for failing to disclose any reasonable cause of action.”

13 On the application before me, Ms Lawson of Counsel appeared for the applicant father, Mr Potkonyak, solicitor, appeared for the respondent mother, Ms Shea, solicitor, appeared for the child and Mr Anderson of Counsel appeared for the Director General. It came before me in the Duty Judge list, the urgency of the application being that the District Court proceedings were listed for further mention the following day, and that the parties needed to know where they stood.

14 Ms Lawson for the father submitted that the proceedings should be dismissed for the following reasons:

(a) first , the proceedings had not been properly commenced in accordance with the Rules;

(b) secondly , the relief claimed by the mother in these proceedings is substantially the same relief as that claimed by her in the District Court proceedings; and

(c) thirdly , the proceedings do not disclose any reasonable cause of action.

15 I deal with those submissions in the order that I have listed them.

(a) The first ground

16 As a consequence of certain assurances offered by Mr Potkonyak during the course of the hearing before me, the first ground is no longer pressed.

(b) The second ground

17 I would not accede to the father’s application simply on the second ground, namely that the relief claimed by the mother in these proceedings is substantially the same relief as that claimed by her in the District Court proceedings. A comparison of the two forms of relief claimed in the two proceedings are in fact quite different. In the District Court proceedings the mother seeks to avail herself of the provisions of the Act which provide for appeals to the District Court. By comparison, in the proceedings before me the mother seeks prerogative relief in the form of an order that the orders of the Children’s Court of 23 September 2008 be removed into this Court and quashed by an order in nature of certiorari.

18 While the ultimate result may be the same, the nature of the two forms of relief are in fact quite different. One invokes the appeal provisions of the Act, while the other seeks relief in the form of a prerogative writ. I do not consider that it can accurately be said that the same relief is claimed in the two proceedings.

19 Even if I am wrong in that respect, I would have thought that having regard to the fact that the proceedings before me were commenced prior to the commencement of the District Court proceedings, it is the District Court proceedings (not these proceedings) that offend against the principle that the same relief should not be sought in different concurrent proceedings. For that reason, I would have thought that the appropriate course for the father to take would have been to move the District Court to dismiss those proceedings as an abuse of process.

20 However, the commencement by the mother of the District Court proceedings is not irrelevant for the purposes of considering the third ground.

(c) The third ground

21 Section 91 of the Act, provides for appeals from orders of the Children’s Court to the District Court. So far as is relevant, that section provides as follows:

“91 Appeals

(1) A party to proceedings who is dissatisfied with an order (other than an interim order) of the Children’s Court may, in accordance with the rules of the District Court, appeal to the District Court against the order.

(2) An appeal is to be by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence on which the order was made, may be given on the appeal.

(3) Without limiting subsection (2), the District Court may, instead of taking fresh evidence, decide to admit as evidence the transcript of proceedings before the Children’s Court and any exhibit tendered during those proceedings.

(4) In addition to any functions and discretions that the District Court has apart from this section, the District Court has, for the purposes of hearing and disposing of an appeal, all the functions and discretions that the Children’s Court has under this Chapter or Chapter 6.

(5) Without limiting the generality of subsection (4), the District Court may confirm, vary or set aside the decision of the Children’s Court.

(6) The decision of the District Court in respect of an appeal is taken to be the decision of the Children’s Court and has effect accordingly.”

22 Under the provisions of UCPR Part 50, Rule 50.3 (1)(a), an appeal from an order of the Children’s Court is to be taken within 28 days of the order being made.

23 It is clear that the mother did not appeal within the 28 day period either from the orders of the Children’s Court made on 22 January 2008 or those made on 23 September 2008. Presumably that is why she now seeks leave to appeal from those orders, being leave to appeal out of time. By contrast, the appeal from the order of the Children’s Court made on 24 July 2009, whereby it dismissed the mother’s application for leave to apply for the rescission or variation of the earlier orders has been brought within the required 28-day period and accordingly she brings that appeal as of right.

24 It is now settled law that for the purposes of section 91 of the Act, an order dismissing an application for leave to make an application for the rescission or variation of a care order is an order from which an appeal lies to the District Court: S v Department of Community Services [2002] NSWCA 151.

25 By commencing the proceedings in the District Court, the mother has availed herself of the appeal process provided under the Act. If leave to appeal from the orders made on 22 January 2008 and 23 September 2008 are granted by the District Court, the hearing before the District Court would be by way of a new hearing under section 91 of the Act, and evidence that was not before the Children’s Court could also be adduced. That would enable the District Court to consider anew the substantive merits of the case. It could then confirm, vary or set aside the challenged orders of the Children’s Court, and in that event, the decision of the District Court would be taken to be the decision of the Children’s Court and would have effect accordingly.

26 So far as the appeal from the orders of 24 July 2009 is concerned, if that appeal were allowed, the District Court would normally grant leave to the mother to institute proceedings under section 90, and the matter would be remitted to the Children’s Court to hear the application in question.

27 No doubt the procedures are somewhat cumbersome, but the Children’s Court is the specialist body that has the jurisdiction to determine issues relating to the welfare of children. As McDougall J said in Re Liam [2005] NSWSC 75, at [25]:

“It is apparent from the Act that the legislature intended that the Children’s Court should be the primary court for the hearing and determination of applications under the Act, and, more generally, for applications relating to the safety, welfare and well-being of children or young persons (insofar as the Act makes provision for such applications). It is equally clear that the legislature intended that the District Court should be the primary court of review of decisions made by the Children’s Court under the Act.”

28 This Court’s jurisdiction to grant relief by way of certiorari is confirmed by section 69 of the Supreme Court Act 1970. Sub-sections (3) and (4) of section 69 are in the following terms:

“(3) It is declared that the jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes jurisdiction to quash the ultimate determination of a court or tribunal in any proceedings if that determination has been made on the basis of an error of law that appears on the face of the record of the proceedings.
(4) For the purposes of subsection (3), the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination.”

29 It might be noted that the jurisdiction referred to in sub-section (3) does not purport to be exclusive. Indeed, in Re Frieda and Geoffrey (2009) 40 FamLR 608, White J was required to determine whether an interim order made by the Children’s Court was liable to be removed into this Court for the purpose of being quashed by an order in the nature of certiorari. His Honour held that it did, stating, at [34]:

“The remedy of certiorari is not confined to the quashing of an ultimate determination of a court or tribunal. It lies where the decision sought to be quashed determines questions affecting the rights of subjects”

30 The scope of the writ of certiorari has been definitively laid down by the unanimous decision of the High Court in Craig v The State of South Australia (1994) 184 CLR 163 at 175-6 in the following terms:

“Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and "error of law on the face of the record". Where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it [60] . In contrast, where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to the "record" of the inferior court or tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record. “

31 My reasons for dismissing the Summons on this third ground are as follows.

32 First, the relief, even if granted, would lack utility.

33 It is clear from the terms of the orders sought by the mother in the District Court that what she wishes to achieve is a share of the parental responsibility for the child and a greater degree of access. Yet it is quite clear that even if she was successful in obtaining an order in the nature of certiorari in relation to the order of 23 September 2008 (which is the only substantive order sought by her in the proceedings before me), it would achieve nothing more than her being released from the undertakings recorded in sub-paragraphs (f) to (j) of paragraph 1 of those orders.

34 That would not achieve anything like her real objective. The orders made by the Children’s Court on 22 January 2008, by which parental responsibility in respect of the child devolved upon the father and the Minister, would remain unaffected.

35 Secondly, I do not consider that any of the matters raised by Mr Potkonyak either in his written submissions or in his oral address persuades me that there is a real issue to be tried. I do not consider that the grounds upon which an order in the nature of certiorari would be made have been established.

36 In particular, I do not accept the submission made by Mr Potkonyak to the effect that prerogative relief is required because the orders made on 23 January 2008 have now lost their independent existence, having been merged into the orders of 22 September 2008. In my opinion, while the orders of 22 September 2008 vary the earlier orders, they do so only by recording certain additional undertakings given by the mother. I do not consider it to be arguable that if the orders of 23 September 2008 were quashed, this would result in the earlier orders also being quashed.

37 Thirdly, while it is clear that this Court retains a discretion to grant relief in the nature of certiorari whenever it is satisfied that such relief is justified in the circumstances of the particular case, it is clear that the Court also has a discretion to refuse prerogative relief when an adequate alternative remedy, such as an appeal, is available: see Hill v Green (1999) 48 NSWLR 161, particularly per Fitzgerald JA at [163] and the cases there cited.

38 In NSW Breeding & Racing Stables Pty Ltd v Administrative Decisions Tribunalof New South Wales (2001) 53 NSWLR 559, Barrett J had occasion to consider the general principles as they relate to the discretionary nature of administrative law jurisdiction in circumstances where an alternative review or appeal mechanism is available.

39 At [15] to [19] in particular, his Honour reviewed the judgment of Kirby P in Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501. In that case, Kirby P at 509 reviewed the decision of the English Courts, including the decisions of the English Court of Appeal in R v Chief Constable of the Merseyside Police; Ex Parte Calveley [1986] QB 424 and R v Epping and Harlow General Commissioners; Ex Parte Goldstraw [1983] 3 All ER 257, and concluded that those decisions make it clear that, at least in that jurisdiction, it is a cardinal principle that, save in the most exceptional circumstances, the judicial review jurisdiction will not be exercised where other remedies, including the remedy by way of appeal, are available but have not been used.

40 In his analysis, Barrett J noted that Kirby P had concluded that so far as New South Wales is concerned, there has been acceptance of this general approach. The considerations supporting this approach were stated by Kirby P in Ballam v Higgins (1986) 17 IR 131 at 132 in the following terms:

1. It recognises and gives effect to the legislative scheme provided by Parliament for internal appeals, in this case to the Court Session of the Commission;

2. It affords a proper place to the specialised tribunal which may have a superior advantage in ready knowledge of the developments of jurisprudence under scrutiny which this Court does not initially enjoy. Furthermore, that tribunal frequently has a superior armoury of remedies at its disposal than this Court can offer;

3. Whilst it may involve the possibility of additional cost or delay, it affords this Court the advantage of having the opinion of the appellate tribunal should the tribunal determine the question of jurisdiction and should it still be the intention of a party to challenge jurisdiction;

4. It allows complete exhaustion of any additional factual issues which may be relevant to establishing the facts said to ground jurisdiction, which facts may more readily be determined below than in this Court; and

5. It conserves to cases where no other remedy exists, the discretionary and exceptional remedies provided by writs in the nature of prerogative writs and recognises the pressure of business in this Court, including in the exercise of its general supervisory jurisdiction.”

41 At [18], Barrett J also cited the decision of the Full Court of the Supreme Court of South Australia in Weinel v Judge Parsons (1994) 62 SASR 501 at 504, where the following was said:

“Remedies by way of judicial review are discretionary. They are generally not granted where there is another equally effective and convenient remedy; R v Hillingdon London Borough Council ex parte Royco Homes Ltd [1974] 1 QB 720 per Lord Widgery at 728. Judicial Review should not be used as an alternative to the exercise of a right of appeal and the discretion may be exercised to discourage the procedure from being so used; R v Ross Jones ex parte Green (1984) 156 CLR 185 per Wilson and Dawson JJ at 214.”

42 In my view the foregoing principles apply to orders in the nature of certiorari.

43 Under the terms of the Act, section 91 provides an extensive avenue of appeal by way of a new hearing and fresh evidence. Once the District Court has heard and decided the appeal, prerogative relief may then be more readily granted if the circumstances call for its exercise: see for example Re Louise and Belinda [2009] NSWSC 534.

44 In all the circumstances, I do not even see it as arguable that this Court would exercise its powers under section 69 of the Supreme Court Act in respect of the orders of the Children’s Court made on 23 September 2008.

45 Those are my reasons for dismissing these proceedings.

Costs

46 Only the father and the Director General seek orders for costs against the mother. Mr Potkonyak opposes the making of any such orders.

47 In the normal course, costs follow the event: see UCPR Part 42 Rule 42.1. Accordingly, upon the dismissal of these proceedings, it would normally follow that the unsuccessful plaintiff would pay the successful defendants’ costs.

48 The only respect in which this prima facie position may not apply is in relation to the period between 18 August 2009 and the hearing of this application. That is because on 18 August 2009 the parties agreed to a timetable for the preparation of these proceedings for the final hearing. I enquired of Ms Lawson why, in her submission, there should be any order for costs in favour of any party in respect of that period, given that this application could have been made on 18 August 2009, thereby saving the costs of any preparation undertaken since that time.

49 Ms Lawson gave a number of reasons why the usual order should not be departed from. In particular, she submitted that as the proceedings had only been commenced on 11 August 2009 and came before the Court as an urgent matter on 18 August, 2009, being just 7 days later, on an entirely different urgent application, there had not been time to consider the matter in sufficient depth to make this application.

50 I think there is much to be said for that submission. I might also add that at that point of time, the mother had not commenced her proceedings in the District Court, a matter that has weighed heavily in my decision to dismiss the Summons.

51 Mr Potkonyak said all that could be said in support of his submission that there ought to be no order as to costs. However, I do not consider that there is sufficient reason to depart from the principle that as a general rule, costs should follow the event.

52 It is for these reasons that I made the order for costs in question.

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