Re Kerry

[2010] NSWCA 232

New South Wales

Court of Appeal

CITATION:	Re Kerry [2010] NSWCA 232
HEARING DATE(S):	2 August 2010
JUDGMENT DATE:	9 September 2010
JUDGMENT OF:	Young JA
DECISION:	Order for additional access made.
CATCHWORDS:	Interim access order for visitation rights- Supreme Court Act 1970, ss 23, 66, 69- whether Court of Appeal has power to grant interim relief where application for relief in lieu of certiorari- whether Court in supervisory role of jurisdiction should grant ancillary order pertaining to personal matter- Court has jurisdiction to grant mandatory interim injunction ancillary to relief sought under s 69- supervised access order granted on the merits on taking of personal undertakings- caution regarding use of s 69 to set aside or affect decision of District Court on statutory appeal from Children's Court.
LEGISLATION CITED:	Civil Procedure Rules (UK), Pt 54 District Court Act 1973, s 127 Supreme Court Act 1970, ss 23, 66, 69(1)(f) Supreme Court Act 1981 (UK), s 31
CASES CITED:	Adler v District Court of NSW (1990) 19 NSWLR 317 Cook v Head [1976] 1 NSWLR 176 R v Inspectorate of Pollution; Ex parte Greenpeace Ltd [1994] 1 WLR 570 R v Secretary of State for Education and Science; Ex parte Avon County Council [1991] 1 QB 558 R v Secretary of State for the Home Department; Ex parte Muboyayi [1992] 1 QB 244 Re Victoria (2002) 29 Fam LR 157 Spruill v Director General Department of Community Services [2001] NSWCA 413
PARTIES:	The names of the parties are confidential.
FILE NUMBER(S):	CA 2010/64070; 2010/67187
COUNSEL:	2010/64070: M Gunning (Applicant) M England (Respondent) 2010/67187: P Singleton (Applicant) M England (Respondent)
SOLICITORS:	I V Knight, Crown Solicitor (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	1796/09
LOWER COURT JUDICIAL OFFICER:	Truss DCJ
LOWER COURT DATE OF DECISION:	1 April 2010

2010/67187
2010/64070

YOUNG JA

Thursday 9 September 2010

RE KERRY

Judgment

1 HIS HONOUR: Applications in these two matters were heard by me on Monday 2 August 2010. They concerned access to the child whom I have named “Kerry” (not the real name of the child) whilst Kerry is in hospital, the proposal being that Kerry will be in hospital for 3 to 10 days from 4 August 2010.

2 The proceedings commenced in the Woy Woy Children’s Court where, in a contest as to the parenting of Kerry, some orders were made favourably to the present applicants who are the mother and material grandmother of the child. However, an appeal was made to the District Court, and her Honour Judge Truss, found in favour of the present respondent, the Director-General of Human Services and gave the parenting of the child to the Director-General with the mother to have a supervised contact with the child for a minimum of 6 times per year for a minimum period of 2 hours’ duration at a place approved by the Director-General and the contact to be supervised by a nominee of the Director-General. The grandmother was allowed the same contact to occur concurrently with the mother’s contact.

3 There is, of course, no appeal from the District Court in these sort of matters because the hearing before the District Court was not an action and s 127 of the District Court Act 1973 only authorises appeals from a decision in an action in the District Court; see eg Cook v Head [1976] 1 NSWLR 176.

4 This Court in Spruill v Director-General Department of Community Services [2001] NSWCA 413 has indeed proceeded along the same lines and made it quite clear that there is no statutory appeal from the District Court to the Supreme Court and no further right of appeal to the Court of Appeal in children’s matters (other, of course, than if there is a proper application for judicial review under s 69 of the Supreme Court Act 1970).

5 Because they feel aggrieved by the decision of the District Court and because their advisors consider that this is an appropriate procedural course, the mother and the grandmother have applied to this Court under s 69 of the Supreme Court Act 1970 for what used to be called the prerogative order of certiorari. That matter will be considered by the Court of Appeal on its merits later this month.

6 The problem that arose on 2 August was that the mother and the grandmother sought interim orders allowing them to have visitation rights to Kerry while he was in hospital.

7 As will appear, I have considerable doubt as to whether the Court has power to grant interim relief where there is an application made to it for certiorari.

8 However, the matter was urgent, the child was going to hospital on the following day or so, there was no submission or even pressure from Ms England who appeared for the Director-General, and indeed, she even offered the helpful comment that s 23 of the Supreme Court Act might cover the situation.

9 In the circumstances I dealt with the application on its merits but reserved my reasons. I made orders on 2 August.

10 Because the situation that I had to deal with on 2 August is now a matter of history, there is little point in giving expansive reasons for my decision on the merits. I accepted the evidence of the grandmother that the child would be comforted in hospital by having familiar faces there near her. Indeed, that evidence just accords with common sense. The main difficulty that the Director-General had was that the mother or grandmother might create scenes at the hospital or upset the child. There was evidence as to past problems and denials and Mr Singleton for the mother, and Mr Gunning for the grandmother both submitted that there was really scant evidence of conflict.

11 I dealt with this matter by taking personal undertakings to the Court from both the mother and the grandmother and took the unusual step of personally saying to them that the usual consequences of breach of such an undertaking to the Court would be that they would go to gaol. They both acknowledged to me that they understood this. It seemed to me that that undertaking, added to the circumstances of the case, were sufficient to make a detailed order which I did make for supervised access whilst Kerry was in hospital.

12 I now return to the theoretical problem.

13 Certiorari is a public law remedy whereby a court supervises the performance of administrative tribunals, and in theory, of courts and other bodies. It is different from a private appeal where private rights are considered. However, in more modern times the distinction between the court’s supervisory duty in the public law sphere and the interests of a party to the dispute who was aggrieved by what happened have become a little blurred. What went through my mind on 2 August is that if my prime purpose is to preserve the integrity of the judicial system in the District Court by ensuring it did not exceed its jurisdiction, why would I as an ancillary matter to that supervision, make an order which had nothing to do with the jurisdiction of the District Court but was rather personal to the parties?

14 The submissions put to me the other way, which I will succinctly summarise, omitting all the polite introductory words were that:

(1) Why not deal with an interim order that naturally occurs. The Supreme Court has wide powers under s 23 and elsewhere and there is no reason not to make an interim order, especially if there is no opposition.

(2) The considerations which I had in mind may be of great historical interest but were irrelevant to modern litigation.

15 I have not found any useful precedent which would enable me to decide this matter. However, it does seem that when this sort of problem could have been dealt with by the courts in the past, the point was either not argued or ignored; see eg Adler v District Court of NSW (1990) 19 NSWLR 317.

16 I have no difficulty at all with the idea that when seized with an application for certiorari the Court might make a stay order of the whole of the decision made below and probably a discrete part of it. Nor have I any difficulty with the situation where the subject matter of the litigation is to be reserved until the hearing of the matter. The problem only occurs where what is being sought is some adjustment of the order below for purely personal concerns of the litigants.

17 In the instant case, it may be that one could stay the order below except in so far as it permitted rights of access to the mother and grandmother but I find difficulty with that because what is really being sought are additional rights for the mother and grandmother whilst Kerry is in hospital.

18 That sort of right could be conferred by a mandatory interim injunction.

19 Digressing, in England the problem has been recognised in that s 31 of the Supreme Court Act 1981 (UK), expressly empowers the court to grant a declaration or injunction where there is an application for judicial review. That has led to orders being made such as in R v Inspectorate of Pollution; Ex parte Greenpeace Ltd [1994] 1 WLR 570. Of course, in England there can be no judicial review except by leave, and Part 54 of the Civil Procedure Rules (UK) provides that, when giving leave, the judge may stay the decision, the subject of the review application (earlier versions made the stay automatic, but obviously this did not work).

20 In NSW, there is no requirement for leave and there is no special authorisation for an injunction in an application for a prerogative order.

21 However, although I have some doubt about the matter, it seems to me that the preferable view is that an application for a prerogative order under s 69 of the Supreme Court Act 1970 comes within the ambit of the word “proceedings” as used in s 66. One gets confidence in saying this because of the use of the word “proceedings” in s 69(1)(f) of the Supreme Court Act.

22 Although s 66 has been taken from earlier legislation which was more concerned with injunctions in ordinary actions between subjects, it seems to me that reading it in context it does cover the instant situation.

23 Accordingly, if an application is made to this Court under s 69, in my view the Court has jurisdiction either to stay in whole or in part the decision which it is sought to review or to grant the appropriate injunction to hold the status quo pending the hearing of the appeal or, as in this case, to grant an injunction that is ancillary to the relief being sought on the application.

24 As in England problems will arise where the public law rights of the community or the rights of a third person who is not a party to the proceedings are involved; see eg R v Secretary of State for Education and Science; Ex parte Avon County Council [1991] 1 QB 558; R v Secretary of State for the Home Department; Ex parte Muboyayi [1992] 1 QB 244. However, apart from mentioning the fact that I am aware of that problem, it is not necessary to deal with it in these proceedings.

25 Accordingly, I have jurisdiction to make the orders which I did in fact make on 2 August 2010.

26 I should add a cautionary note.

27 The principal court dealing with the care and control of children is the Children’s Court. There is a statutory right of appeal in certain cases to the District Court. The legislature, in its wisdom, has not seen fit to grant a further appeal.

28 The Equity Division of this Court exercising its parens patriae jurisdiction has also jurisdiction in this area. There have been a series of decisions of which Re Victoria (2002) 29 Fam LR 157 (Palmer J, NSWSC) is a good example where equity has said that it would only be in extraordinary circumstances that the court would exercise that power to set aside or affect a decision of the Children’s Court.

29 This Court takes the same restrictive view with respect to applications under s 69 for review of such decisions; cf Spruill’s case (supra).

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