Re Edward

[2001] NSWSC 284

Reported Decision: 51 NSWLR 502

New South Wales

Supreme Court

CITATION:	Re Edward [2001] NSWSC 284
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	SC 10677/01
HEARING DATE(S):	10/04/01
JUDGMENT DATE:	20 April 2001
PARTIES :	Minister for Community Services (Pl) Mother of "The Child" (1 Def) Children's Court of New South Wales (2 Def)
JUDGMENT OF:	Kirby J

COUNSEL :	P Singleton (Pl) Ms K Reynolds (1 Def) Ms Kim Rowley ("The Child")
SOLICITORS:	I V Knight (Pl) Kim Cull - LAC (1 Def)
CATCHWORDS:	Minister for Community Services seeking orders quashing certain determinations by a Magistrate in the Children's Court - Power of Children's Court to rescind, vary or suspend care orders - Whether power to suspend can be implied - Interim orders
LEGISLATION CITED:	Children and Young Persons (Care and Protection) Act, 1998 Children (Care and Protection) Act, 1987 Children and Young Persons (Saving and Transitional) Regulation, 2000
CASES CITED:	Collins v The Queen (1975) 133 CLR 120 Trustees Executors and Agency Co Ltd v Reilly (1941) VLR 110 Regina v M (1980) 2 NSWLR 195 Grassby v The Queen (1989) 168 CLR 1 R v Moseley (1992) 28 NSWLR 735 Craig v The State of South Australia (1994-95) 184 CLR 163 White v District Court of New South Wales (1998) 45 NSWLR 313
DECISION:	Ref para 62

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

KIRBY J

Friday 20 April 2001

10677/01 - RE EDWARD

JUDGMENT

1   HIS HONOUR: The Minister for Community Services seeks orders quashing certain determinations by a Magistrate in the Children’s Court. The orders concern a child who will be referred to as “Edward”, that being a pseudonym which preserves his anonymity (s105(1) Children and Young Persons (Care and Protection) Act, 1998).

The Children’s Court Proceedings

2 Edward’s mother is a single parent. In 1995 she was diagnosed with cancer. She underwent treatment and responded well. However, in the year 2000, her health deteriorated and she was again admitted to hospital. By the end of that year, she was expected to live for only a short time. The Department of Community Services (“the Department”), in these circumstances, made an application under s72 of the Children (Care and Protection) Act, 1987 for a wardship order. Edward’s mother did not participate in those proceedings. The hearing took place on 14 December and the order was made on 15 December 2000. Edward thereafter became a ward of the State.

3 A new Act dealing with child welfare, the Children and Young Persons (Care and Protection) Act, 1998 (“the Act”), came into operation on 18 December 2000, that is three days after the wardship order.

4   The new legislation adopts a different nomenclature. The term “ward of the State” has been replaced by “care order”, and the notion of “parental responsibility”. The Act contains transitional provisions (s263, schedule 3), to be dealt with by Regulations. Regulation 21 of the Children and Young Persons (Saving and Transitional) Regulation, 2000, made the following provision:

“ 21. Rescission and variation of orders
An order of the Children’s Court made under a provision of the old Act that was in force immediately before the repeal of the provision may be rescinded or varied under section 90 of the new Act as if it were a care order.”

5   On 20 February 2001, the mother of Edward completed a form under s90 of the new Act, headed: Application for Leave to Apply and for Rescission or Variation of Care Order. The form required an applicant to identify significant changes in relevant circumstances that may justify revocation or variation of the wardship order (s90(2)). Edward’s mother said this:

“Since the order was made on 14.12.00 there has been an improvement in my health. The order made on 14.12.00 was made because I was in ill health. At the moment I am in remission from cancer. I am under medical treatment from (a doctor). At the time the order was made I was very sick in hospital and unable to care for (Edward) properly.” (parenthesis added)

6   The document contained an elaboration. Edward had been at boarding school. He was unhappy. He had left school and returned home. His mother added:

“My health now is so good that I am able to properly care for (Edward).”

7   The matter came before the Children’s Court on 22 February 2001. The Act contemplates the involvement of the child in proceedings (s9, s98). Edward was separately represented (s98, s99). Edward’s mother and the Department were also represented. The proceedings were informal, and non-adversarial, as required by the Act (s93). The Magistrate indicated, sensibly, that he would feel “more comfortable” were he provided with some medical evidence in relation to the mother’s condition. It was therefore necessary to adjourn the proceedings, to enable that to be done. A date was fixed for the resumption of the hearing on 8 March 2001. The Magistrate then said this:

“The mother to file additional evidence in support of her application for leave, and as best I can, I also propose to make an interim order. The order is now an order which allocates the child’s parental responsibility to the Minister. I propose to, as an interim order, suspend that order and make an order; the child reside with his mother or at a place approved by the department and the child accept the supervision of the department as well …”

8   On 8 March 2001, the matter came back before the same Magistrate. An affidavit by Edward’s mother was tendered, as well as a medical report. In the course of the hearing, the Magistrate said this:

“We are still up at the first stage as to whether the leave should be granted to the party to make an application to rescind or vary the order.”

9   He added:

“The process which the court is dealing with is a two stage process, and the purpose of that two stage process is to erect a barrier around applications which would not require the court to reconsider a decision which had been made, because those decisions can have, in many circumstances, considerable disruptive effects upon the children’s placement …”

10   The learned Magistrate identified the mother’s health as the critical issue which “underpinned” the wardship order made in December 2000. A change in her health was, therefore, a “significant change in relevant circumstances”, justifying the granting of leave (s90(2)). Leave was therefore given. However, the application by the mother to rescind or vary the wardship order could not be heard immediately. Both the Department and the mother needed time to assemble evidence. A new hearing date was fixed for 9 April 2001.

11   An issue arose, therefore, as to what should happen in the meantime. The Department provided the following undertakings:

“I have given the undertaking of the department that the child would not be removed from his mother and the department does, whilst indicating that it would be preferred to (Edward) to return to (a boarding school), it is not going to be attempting to force him to go there if that is not his own wish.” (parenthesis added)

12   The Magistrate then said this:

“In respect of any interim order, it is important for the court to stress that the court is making an interim order because it is not in a position to make a final order. Nonetheless, the court has to act upon the material which it has available to it.
As the second submission that is put by the department, whilst it might be an unusual feature of a final order, it does seem to me that a suspension of an order is a variant, perhaps a particular aspect of a variation, a variation not so much of the order but of the effect of the order.
The purpose of making an order of … suspending the present order is precisely not to have an effect of rescinding the order on an interim basis.”

13   He added:

“Accordingly, I propose to make an interim order in terms of the previous order until further order, that is that the wardship order be suspended and that the child reside with his mother, or at a place approved by the department if not with her, and that the child will accept the supervision of an officer.”

The Summons by the Department

14 The Minister seeks the following orders (paraphrasing the summons).

· First, an order that the Magistrate’s determination on 22 February 2001, purporting to suspend the wardship order, be removed into this Court and quashed.

· Secondly, that the Magistrate’s determination on 8 March 2001, purporting to “continue” the suspension made on 22 February 2001, be removed into this Court and quashed.

· Thirdly, such further other orders as the Court deems fit.

Care Orders

15 The case turns upon the proper construction of s90 of the Act (giving the power to rescind or vary care orders), and upon ss69 and 70 (giving the power to make interim orders). Before turning to those provisions, it is instructive to look at the power to make a care order.

16   Chapter 5 of the Act is concerned with Children’s Court Proceedings. Part 2 concerns “care applications” and includes the following definitions:

“ 60. Definitions
In this Act:
‘care application’ means an application for a care order.
‘care order’ means an order under this Chapter for or with respect to the care and protection of a child or young person, and includes a contact order under section 86.
‘care proceedings’ means proceedings under this Chapter.”

17   The Act identifies certain objects and principles which are to guide its administration (Chapter 2). They include the following:

“9(a) In all actions and decisions made under this Act (whether by legal or administrative process) concerning a particular child or young person, the safety, welfare and well-being of the child or young person must be the paramount consideration.”

18   The Courts are enjoined to follow “the least intrusive intervention” in the life of the child or young person and his or her family, “consistent with the paramount concern to protect the child or young person” (s9(d)). Emergency powers are given to the Director General of the Department and the police, to remove a child thought to be in danger (s43). Responsibility for his or her safety is then assumed by the Director General, who is obliged to promptly make application to the Court for a care order (or certain other orders for which the Act provides) (s45(1)). In a situation which is not an emergency, where the child is thought to be in jeopardy, the Director General may make an application for a care order (s61). There is an obligation to notify certain persons with an interest, including the child or young person (s64). In keeping with the need for informality, a conference is then arranged between interested parties, to identify issues, and the best means of resolving such issues (s65).

19   The Act specifies the grounds upon which the Court may be satisfied that the child, or young person, is in need of protection, such that there is a need for a care order (s71). If the care order involves the removal of the child from his or her parents, the Director General is obliged to present what is termed a “care plan”. The power to make a care order is expressed in these terms:

“s79(1) If the Children’s Court finds that a child or young person is in need of care and protection, it may:
(a) make an order allocating the parental responsibility for the child or young person, or specific aspects of parental responsibility:
(i) to one parent to the exclusion of the other parent, or
(ii) to one or both parents and to another person jointly, or
(iii) to another suitable person, or
(b) make an order placing the child or young person under the parental responsibility of the Minister.”

20   Specific aspects of parental control may be allocated to different people, including the following:

“s79(2)(a) the residence of the child or young person,
(b) contact,
(c) the education and training of the child or young person
(d) the religious upbringing of the child or young person
(e) the medical treatment of the child or young person.”

21   Where the Minister is given parental responsibility (s79(1)(b)), the Court must determine whether aspects of that responsibility should be shouldered by persons other than the Minister (s81).

22   The Court may, on the other hand, determine that something short of a care order is appropriate. It may accept undertakings from a person with parental responsibility, or from the child or young person (s73). It may, where there is a need for protection, place the child under the supervision of the Director General, specifying the period of supervision, which is not to exceed twelve months (s76). Where a supervision order is made, there is an obligation to report to the Court (s76), and an obligation on the part of the child to submit to such supervision (s77).

Rescission or Variation of Care Order

23   The Act makes provision for the rescission or variation of a care order. Such an application can only be made with leave. The Act provides:

“s90(1) An application for the rescission or variation of a care order may be made with the leave of the Children’s Court.
(2) The Children’s Court may grant leave if it appears that there has been a significant change in any relevant circumstances since the order was made or was last varied.”

24 The Minister identified the objective of these provisions in the Second Reading Speech in these words: (Hansard: 11 November 1998, p9762)

“The ability of the court to vary or rescind orders it has made in response to changed circumstances is an important feature of the court’s work. However, this does have the potential to greatly expand the work of the court. A criticism of the current Act was that, regardless of the merits of the case or changed circumstances, there was no limit on the number of applications a party could file for rescission or variation. This generated significant work for the court and for the department and was often very unsettling for the child or young person. Clause 90 of this bill now provides that an application for rescission or variation of an order may only be made with leave of the court.”

25   Those who may make an application are identified (s90(3) and (4)). The Act sets out the matters which the Court is then obliged to take into account before rescinding or varying a care order. It says this:

“s90(6) Before making an order to rescind or vary a care order that places a child or young person under the parental responsibility of the Minister, or that allocates specific aspects of parental responsibility from the Minister to another person, the Children’s Court must take the following matters into consideration:
(a) the age of the child or young person,
(b) the wishes of the child or young person and the weight to be given to those wishes,
(c) the length of time the child or young person has been in the care of the present caregivers,
(d) the strength of the child’s or young person’s attachments to the birth parents and the present caregivers,
(e) the capacity of the birth parents to provide an adequate standard of care for the child or young person,
(f) the risk to the child or young person of psychological harm if present care arrangements are varied or rescinded.”

26   The Court’s powers, once satisfied on these matters, are defined in these terms:

“s90(7) If the Children’s Court is satisfied, on an application made to it with respect to a child or young person, that it is appropriate to do so;
(a) it may, by order, vary or rescind an order for the care and protection of the child or young person, and
(b) if it rescinds such an order – it may, in accordance with this Chapter, make any one of the orders that it could have made in relation to the child or young person had an application been made to it with respect to the child or young person.”

The Minister’s Contentions

27   In determining the validity of the orders made by the Court, the determinations of 22 February and 8 March 2001 must be approached somewhat differently. When the learned Magistrate made the orders on 22 February 2001, he was considering an application by the mother for leave. Leave had not yet been granted. When the orders were made on 8 March 2001, leave had been given. The Court had before it, therefore, an application by the mother to rescind, or vary the wardship order.

28 The Minister contends that there was no power to make the orders of 22 February 2001, for two reasons:

· First, leave having not been given, the Court did not have before it a “care application” or “proceedings” involving the child, these being the sources of power to make an order under s90(7), or an interim order under either s69 or s70 of the Act.

· Secondly, and in any event, there is no power to “suspend” a wardship order (or care order).

29   The attack upon the orders made on 8 March 2001 (by which time leave had been given) again rests upon two bases:

· First, the order was, in truth, a continuation of the order of 22 February 2001. If that order was invalid, that invalidity infected the subsequent order.

· Secondly, even if the order of 8 March 2001 should be regarded as a separate order, in the same terms but distinct from the earlier order, it suffered from the same defect as its predecessor, that is, an absence of power to "suspend”.

30   I should say at once that I believe that the order made on 8 March 2001 was a separate order, distinct from its predecessor. The position had changed, as the learned Magistrate recognised. He gave a short judgment, part of which I have extracted. I therefore believe the first objection should be rejected. The objection to the order of 8 March, therefore, turns on the second argument, namely, whether the Court had power to suspend the wardship order previously made.

The Determination of 22 February 2001

31   As mentioned, when the orders were made on 22 February 2001, the Court had before it an application for leave by the mother under s90(1) of the Act. What were the sources of power to make orders, pending the completion of the leave application? The Court may make orders under s90(7) upon “an application made to it”. That, plainly, is a reference to an application to vary or rescind a care order, not an application for leave. An application to vary or rescind can only be made once leave has been given (s90(1)). Accordingly, as at 22 February, s90(7) was not a source of power for the orders made that day.

32 The Court, however, is given power to make interim orders under ss69 and 70. Section 62 is in the following terms:

“s62 Interim and final orders
A care order may be made as an interim or a final order, except as provided by this Part.”

33 Section 69, relevantly, makes the following provision:

“s69 Interim care orders
(1) The Children’s Court may make interim care orders in relation to a child or young person after a care application is made and before the application is finally determined.”

34 Section 69(1), it will be noticed, is only available “after a care application is made”. It will be remembered, from s60, that a “care application” means “an application for a care order”. A “care order”, in turn, means, relevantly, “an order under this Chapter for or with respect to the care and protection of a child”. An application for rescission or variation under s90 can be so described (s90 falling within Chapter 5). But does an application for leave under s90(1) fall within that definition?

35   The nature of an application for leave was considered in Collins v The Queen (1975) 133 CLR 120, where Barwick CJ, Stephen, Mason and Jacobs JJ said this: (at 122)

“In the ordinary course of litigation, criminal or civil, it is considered that a party to proceedings should have the right to present his own case. But an application for leave or special leave to appeal is not in the ordinary course of litigation. The practice of this Court in granting or refusing leave or special leave makes this clear. First, until the grant of leave or special leave, there are no proceedings inter partes before the Court. This is so even in a case in which the application for leave or special leave is opposed. Whilst notice of intention to move the Court for leave or special leave may be given in writing, which is filed in the Registry of the Court, the motion for leave or special leave is made orally in court. Notwithstanding that the notice of intention to apply is served on persons who may be interested to oppose the application, the intending applicant is not bound to move the Court. When the motion is moved, the applicant for such leave or special leave is no more than an applicant desiring to obtain the Court’s leave to commence proceedings in the Court.”

36 The Minister, relying upon this passage, submitted that an application for leave was not inter partes. They were proceedings between the mother and the Court. They were not, as such, proceedings about Edward.

37   This is a narrow view. However, I believe it to be the correct view. I accept that an application for leave under s90(1) may be described as an application for an order under Chapter 5. However, it cannot be described as an application “for” the care of the child. The granting of leave does not, as such, effect the child. As counsel for the Minister said, in helpful written submissions, “the effect upon the child is potential (dependant on the making of a later order), not actual”.

38   However, the definition of a “care order” is significantly broadened by the inclusion of the words “with respect to the care and protection of a child or young person” (s60). Can an application for leave be so described? In Trustees Executors and Agency Co Ltd v Reilly (1941) VLR 110, Mann CJ said this, commenting upon a similar expression: (at 111)

“The words ‘in respect of’ are difficult of definition, but they have the widest possible meaning of any expression intended to convey some connection or relation between the two subject-matters to which the words refer.”

39 The expression, of course, appears in the Constitution, s51. It will have a wide or narrow meaning, depending upon its context (Regina v M (1980) 2 NSWLR 195 at 223). I do not believe that a leave application can be described as an application “with respect to the care and protection of a child …” Accordingly, s69 is not, in my opinion, a source of power for the orders made on 22 February.

40 Section 70 is headed “Other Interim Orders”, and is expressed in wide terms. The section is as follows:

“s70 The Children’s Court may make such other care orders as it considers appropriate for the safety, welfare and well-being of a child or young person in proceedings before it pending the conclusion of the proceedings.”

41 The Minister repeated the same submission. It was argued that, before the Court could use s70, it must have “proceedings before it” which relate to the child. The child must be “in” the proceedings, that is, involved. For the reasons previously given, it was submitted that, in an application for leave, only the Court and the person seeking leave were involved, not the child.

42 That argument, successful in the context of s69, seems to me not to apply in the context of a differently worded section, s70. First, one would ordinarily describe an application for leave as “proceedings before the Court”. Secondly, if the interpretation offered on behalf of the Minister were right, there would be no power to make interim orders where an application for leave was incomplete, as happened in this case. Here, as a practical matter, it was desirable that some form of order should be made, to cover the situation between the date of the hearing and the next occasion that the matter was before the Court. I believe interim powers are available even at the leave stage.

43 The Minister, in these circumstances, fell back upon a second argument. Section 70 empowers the Court to “make such other care orders as it considers appropriate” for the safety, welfare and well-being of the child or young person. The Court is empowered only to make orders that may be characterised as “care orders”, as defined by s60. A “care order”, so defined, is an order “under this Chapter”, that is, Chapter 5. Accordingly, the type of order permitted had to be found within Chapter 5. That Chapter did not include any power to “suspend” a care order.

44   This is the argument which is common to the Minister’s objection to both the determination of 22 February and 8 March, to which I now turn.

Is There a Power to Suspend a Care Order?

45   The orders made by the learned Magistrate on 22 February, and again on 8 March, appear to be sound common sense. They also conformed to the objectives of the Act (s9). They permitted mother and son to remain together, and hence were, “the least intrusive intervention” in the life of the child and his family. The child, nonetheless, remained under the watchful eye of the Department. The orders provided for the Department’s supervision. The orders, therefore, recognised and regularised what had occurred, that is, that notwithstanding the wardship order, the child had left boarding school, and rejoined his mother, where he wished to remain.

46 The Minister, in these proceedings, accepted that the objectives of the Magistrate were worthy. However, it was submitted that the means chosen to achieve those objectives, namely, suspending the wardship order, was beyond power.

47   The Children’s Court is, of course, a statutory Court. It has such powers as have been conferred upon it by statute, or which arise by necessary implication. In Grassby v The Queen (1989) 168 CLR 1, Dawson J (with whom Mason CJ, Brennan and Toohey JJ agreed), said this: (at 16/17)

“However, notwithstanding that its power may be defined, every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise (ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest). Those implied powers may in many instances serve a function similar to that served by the inherent powers exercised by a superior court but they are derived from a different source and are limited in their extent.”

48   His Honour added: (at 17)

“It would be unprofitable to attempt to generalize in speaking of the powers which an inferior court must possess by way of necessary implication. Recognition of the existence of such powers will be called for whenever they are required for the effective exercise of a jurisdiction which is expressly conferred but will be confined to so much as can be ‘derived by implication from statutory provisions conferring particular jurisdiction’.”

49   Adopting these remarks, and in the context of the District Court, Gleeson CJ (with whom Kirby P and Mahoney JA agreed), said this in R v Moseley (1992) 28 NSWLR 735: (at 739)

“It has, as well as the powers expressly conferred upon it by legislation, the implied power to do that which is necessary to carry its statutory powers into effect.”

50   Once a care order has been made, the Court is given power to rescind that order, or vary its terms (s90(7)). There is no express power to suspend a care order. According to the Minister, that omission was not oversight. Counsel for the Minister, in written submissions, said this: (p 7)

“There is, however, reason to infer that Parliament did not intend to confer a general power to suspend earlier orders. In s90 of the 1998 Act the Parliament has prescribed a specific regime for the recision and variation of care orders. Where the Children’s Court has pronounced final orders for the care of a child (in this case the wardship order) those orders must be considered to be permanent and binding unless upset on appeal (or other like procedure) or reversed in accordance with the statutory regime. The 1998 Act (like the 1987 Act earlier) has prescribed a scheme for subsequent interference with final orders of the Children’s Court in its care jurisdiction. That scheme is embodied in s90 of the Act. The Act should be construed as providing s90 as the only available mechanism whereby the Children’s Court can undo one of its own final orders.”

51   In respect of different issues, elsewhere in the Act, the Director General and others are given power to suspend licences, authorisations, and so on, relating to the care of children (for example, s220, s245 and Schedule 2 cl 7).

52 There is force in these submissions, although I believe the terms of a care order (or wardship order) may be varied under ss69 and 70. To that extent the court can go outside the scheme in s90, and “undo” one of its own final orders. It can, moreover, do so by reference to the criteria in s70 (rather than s90(6)), where orders are made under that section

53   However, rescission, by its nature, is a final order. In this respect it is unlike variation. Nothing in the Act suggests that, once rescinded, a care order might revive under certain circumstances. Suspending the wardship order amounts to a rescission for a defined period, after which the order revives. In my view that is a contradiction in terms. Once a care order has been rescinded, that is the end of the matter (apart from orders under s90(7)(b)). I do not believe, moreover, that you can characterise an order, which purports to rescind a care order for a defined period, as a “variation” of the care order. Such an order can only be justified if there is the power to suspend.

54   I have said already that there is no express power to suspend a care order. Nor do I believe that such a power can be implied. Such a power is not necessary to carry the statutory powers into effect. In my view, the learned Magistrate’s objective could have been achieved by a variation of the care order. The care order in favour of the Minister could have been maintained, whilst assigning (by way of variation), aspects of parental responsibility to the mother (s81). The mother could have assumed parental responsibility for Edward’s residence, education and training (cf s79(2)). Alternatively, and less formally, the care order could have remained in place, and the status quo recognised by the Department giving undertakings along the lines of undertakings given, namely, to leave the child with the mother, and not to insist upon his return to boarding school. At the same time, undertakings could have been given by the child that he remain with his mother, attend a specified school, and submit to the supervision of the Department. A supervision order could also have been made under s77.

The Orders Made on 22 February and 8 March

55   The position we have reached is this. Section 90(7) is not available as a source of power for the orders made on 22 February, since the Court had before it only a leave application. Nor do I not believe it was available on 8 March. Although on 8 March the Court had before it an application to rescind or revoke, s90(7) is dealing with final orders, made after a hearing, having considered the matters in s90(6). It is not dealing with interim orders.

56 So, we are left with the provisions dealing with interim orders, s69 and s70. Section 69 was not a source of power on 22 February, since it required a “care application”, whereas the Court, at that point, was considering a leave application (s90(1)). Section 70 was available to justify the orders made on 22 February, and ss69 and 70 the orders made on 8 March. However, the expression “interim care orders” in s69, and “other care orders” in s70 must, in my opinion, be construed as meaning such other orders as can be found within Chapter 5, relating to the care and protection of a child or young person. Since there was, in my view, no power within that Chapter to suspend, it follows that the interim orders made on 22 February 2001 and 8 March 2001 are both invalid.

Should Relief be Given?

57 The Minister, in these circumstances, seeks an order in the nature of certiorari to quash each of the invalid orders. They were made without power and hence there was jurisdictional error (Craig v The State of South Australia (1994-95) 184 CLR 163 at 177).

58   In White v District Court of New South Wales (1998) 45 NSWLR 313, Handley JA (with whom Beazley and Stein JJA agreed), emphasised the discretionary nature of that remedy, when he said this: (at 322/323)

“Certiorari is a discretionary remedy. R v Justices of Surrey (1870) LR 5 PC 417, 450; Waterside Workers Federation of Australia v Gilchrist Watt & Sanderson Ltd (1924) 34 CLR 482, 517-9. This principle still applies when judicial review for error of law on the face of the record is sought under s69 of the Supreme Court Act. Meagher v Stephenson (1993) 30 NSWLR 736, 738. Before this discretion can be exercised ‘there must be something in the circumstances of the case which make it right to refuse the relief sought’. R v Stafford JJ (1940) 2 KB 33 CA at 44 per Greene MR.”

59   His Honour added: (at 323)

“Despite the error of law by the Judge in applying the wrong test, it would be a futility for this Court to quash the decisions and remit the proceedings for re-determination, because the claimants’ appeals must again be dismissed. In my judgment this Court, in the exercise of its discretion, should refuse relief.”

60   Aronson & Dyer, in “Judicial Review of Administrative Action” (2nd Ed), in their commentary upon the discretionary criteria for refusing certiorari and prohibition (at 577 to 581), said this: (at 581)

“Finally, where the court has a discretion, it can refuse certiorari or prohibition because it would be useless, or nearly so. The courts incline against using this reason for discretionary refusal unless it is clearly established.”

61   Here, the case of Edward has been used as a convenient pretext for an examination of a new Act. The order on 22 February was an interim order, as was the order on 8 March. The matter resumed on 9 April 2001, when the parties were to meet, in the hope of agreeing upon final orders. I am assured that the Minister recognises the hardship of the mother (and the child), and would not seek to use the outcome of this hearing to disturb the ordinary processes which have continued whilst the matter has been awaiting hearing. The issue arises, in these circumstances, whether the Court should make the orders sought? If the interim orders had simply expired, and had no continuing impact, I would have been inclined to refuse the relief. However, it has been argued that the orders may have some continuing relevance. It was said on behalf of the mother (arguing in defence of the interim orders), that a suspension was, in effect, a rescission order, but made on an interim basis, and hence of temporary effect. If the orders made by the Magistrate can be likened to a rescission order, then they may have some continuing relevance. I therefore believe it appropriate to make the orders sought.

Orders

62   I therefore make the following orders:

1. That the second defendant’s determination made on 22 February 2001, at Campsie, purporting to suspend the wardship order made in respect of Edward on 15 December 2000, be removed into this Court and quashed.

2. That the second defendant’s determination made on 8 March 2001, at Campsie, purporting to suspend the wardship order made in respect of Edward on 15 December 2000, be removed into this Court and quashed.

3. That the matter be remitted to the Children’s Court of New South Wales to determine according to law.

4. No order was sought as to costs, and I make none. However, I give liberty to the Minister to seek costs within 7 days should she desire to do so.

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Last Modified: 04/23/2001