re Oscar

[2002] NSWSC 887

CITATION:	Re Oscar [2002] NSWSC 887
CURRENT JURISDICTION:	Equity
FILE NUMBER(S):	SC 2517/02
HEARING DATE(S):	12 September 2002
JUDGMENT DATE:	27 September 2002
PARTIES :	Director General, NSW Department of Community Services (P) Children's Court of NSW (D1) Father (D2) Mother (D3) Paternal grandmother (D4) Guardian ad litem (D5) Legal representative (D6) Maternal grandmother (D7)
JUDGMENT OF:	Hamilton J

COUNSEL :	No appearance (P) No appearance (D1) C O'Connor, Solicitor (D2 & 4) No appearance (D5 & 6) No appearance (D3 & 7)
SOLICITORS:	I V Knight (P) I V Knight (D1) Thomson Rich O'Connor (D2 & 4) Liston & Loveband (D5 & 6) No appearance (D3 & 7)
CATCHWORDS:	APPEAL AND NEW TRIAL [268] - Appeal - Practice and procedure - Suitors' Fund - Definitions - "Appeal" - Proceedings in nature of appeal - Proceedings in nature of application for prohibition against Children's Court.
LEGISLATION CITED:	Children and Young Persons (Care and Protection) Act 1998 ss 58, 91 Suitors Fund Act 1951 ss 2(1), 6(1)
CASES CITED:	Builders Licensing Board v Pride Constructions Pty Ltd [1979] 1 NSWLR 607 Director-General of Fair Trading v O'Shane NSWSC Graham AJ 22 August 1997 unreported Ex parte Parsons; Re Suitors' Fund Act (1952) 69 WN (NSW) 380 Production Spray Painting & Panel Beating Pty Ltd v Newnham (1991) 37 IR 46 R v Watling; ex p Pearson (1998) 7 Tas SR 404 Re Oscar [2002] NSWSC 453 Re Oscar [2002] NSWSC 466 Stacey v Meagher [1978] Tas SR 56 Stuart v Treleaven [2000] NSWSC 536
DECISION:	Suitors' Fund certificate granted.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

FRIDAY, 27 SEPTEMBER 2002

2517/02 RE OSCAR

JUDGMENT

1 HIS HONOUR: This is an application for a certificate under s 6(1) of the Suitors Fund Act 1951 (“the Act”). The proceedings in which the application is made arose in the following way.

2 A Children’s Court made an order for the psychiatric assessment of a child with which it was dealing under the Children and Young Persons (Care and Protection) Act 1998 (”the CYPA”). The order did not appoint the Children’s Court Clinic (“the Clinic”) to prepare and submit the assessment report as required by s 58 of the CYPA but appointed an outside psychiatrist. The conditions for appointment of an expert outside the Clinic were not fulfilled. The Director General therefore felt impelled to bring proceedings in this Court to correct the legal error which was perceived. It was unfortunate that the proceedings relating to this individual child were further complicated by a legal nicety of this nature, but obviously the plaintiff has a duty to see that the CYPA is duly administered.

3 An appeal lies to the District Court from decisions by the Children’s Court under the CYPA under s 91, but that appeal does not extend to interlocutory orders. It was therefore necessary to approach this Court to exercise its jurisdiction in effect to grant prerogative relief. Although the application fell within the Court’s jurisdiction to make prerogative orders, the summons did not seek and it was not necessary to make an order of prohibition, although that would have been justified. Declaratory relief was sufficient to deal with the situation. The declaration was made to the effect that the plaintiff’s submissions were correct and that the order below was invalid: Re Oscar [2002] NSWSC 453. The Court then exercised its power under its parens patriae jurisdiction to make an valid order replacing the order struck down, so that the matter could go back to the Children’s Court with the situation progressed, rather than simply throwing the whole matter back to the Children’s Court. This was done to reduce any further delay in dealing with the substantive matter relating to the child and in furtherance of the child’s best interests: Re Oscar [2002] NSWSC 466.

4 The second and fourth defendants, being the child’s father and paternal grandmother, who already had a sibling of the child in her care, were joined as defendants to the proceedings. This was a necessary and proper step. Although it is not of relevance to the outcome of the present application, I state for the record that, although there was initially some problem that arose through the mother taking the child to Queensland and remaining there for some time, this Court’s order for the psychiatric examination of the child was ultimately complied with and the matter returned to the Children’s Court for substantive determination. That determination has in fact been made and the subject child, as well as the sibling mentioned above, is now in the care of the fourth defendant, the paternal grandmother.

5 The second and fourth defendants took the view at the hearing before me that the best course was for examination as quickly as possible by the doctor whom the learned Magistrate had appointed. For that reason they opposed the declaration of invalidity of the Magistrate’s decision sought by the plaintiff. Mr C O’Connor, their solicitor, appeared and presented argument to the effect that the order was valid although, as appears, I did not accede to that argument.

6 The second and fourth defendants now seek a certificate under s 6(1) of the Act which is in the following terms:

“(1) If an appeal against the decision of a court:

(a) to the Supreme Court on a question of law or fact, or
(b) to the High Court from a decision of the Supreme Court on a question of law,

succeeds, the Supreme Court may, on application, grant to the respondent to the appeal or to any one or more of several respondents to the appeal an indemnity certificate in respect of the appeal.”

In s 2(1) of the Act “appeal” is defined as including “any motion for a new trial and any proceeding in the nature of an appeal”. Nobody has appeared to oppose the second and fourth defendants’ application for a certificate, but the question does arise whether these proceedings are an appeal within the meaning of s 6(1) of the Act so as to enable a certificate to be granted if otherwise appropriate.

7 It is trite law that proceedings invoking the Court’s jurisdiction to grant prerogative relief are not appellate in nature but involve an exercise of primary jurisdiction. A perusal of the Act indicates that, apart from extension by the definition, “appeal” is used in the strict sense as referring to truly appellate proceedings, rather than primary proceedings. What is particularly significant in indicating that is the fact that it was thought necessary to include in the definition provision extension of the term to a motion for a new trial, which was traditionally regarded as a primary rather than an appellate function of courts, available long before statutory appeals were generally available in the superior courts. The present proceedings are therefore not within the concept of appeal as the word is used in the Act, except by inclusion through the definition, as being within the rubric of proceedings in the nature of an appeal.

8 It is apparent from what I have already said that what must be contemplated by the expression “proceedings in the nature of an appeal” is proceedings which were not in fact appeals within the strict and traditional use of the word. It seems to me that proceedings of the present sort, where the legal correctness of the decision of an inferior court is called in question, and the error, if established, corrected by the Supreme Court are proceedings in the nature of an appeal within the meaning of the Act.

9 In fact, although it was not cited on the hearing of the application, there is high authority to the effect that my conclusions from a perusal of the Act are correct. In Ex parte Parsons; Re Suitors’ Fund Act (1952) 69 WN (NSW) 380 the Full Court of this Court held that an application for prohibition directed to a Court of Petty Sessions was a proceeding “in the nature of an appeal” within the meaning of s 6(1). Sir Kenneth Street CJ said at 381:

“These proceedings were proceedings which were instituted for the purpose of correcting an error which had been made in the court below. It was a court which was adjudicating upon a matter properly brought before it, and it was to a court that the writ was directed. In the result, this Court came to the conclusion that the proceedings below needed correction to the extent of quashing the same, and, the applicant succeeded, therefore, in having an erroneous decision set aside. On every view of the language of the Act, I think it is clear that this is a ‘proceeding in the nature of an appeal,’ and therefore is included in the word ‘appeal’ as it is used in the Act.”

That decision was followed by the Court of Appeal in Production Spray Painting & Panel Beating Pty Ltd v Newnham (1991) 37 IR 46. See also Stacey v Meagher [1978] Tas SR 56; Builders Licensing Board v Pride Constructions Pty Ltd [1979] 1 NSWLR 607; Director-General of Fair Trading v O’Shane NSWSC Graham AJ 22 August 1997 unreported; R v Watling; ex p Pearson (1998) 7 Tas SR 404; Stuart v Treleaven [2000] NSWSC 536.

10 Turning to the facts of the matter, the second and fourth defendants were correctly joined and usefully, through their solicitor, Mr C O’Connor, participated in the proceedings, acting, indeed, as the principal contradictors on the legal issue raised. They were unsuccessful in opposing what I have characterised as an appeal and clearly fall within the concept of unsuccessful parties to the appeal. Having construed the provisions of the Act as I have, it is therefore the proper result that I should award to the second and fourth defendants a certificate under the Act in respect of their costs of these proceedings.

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Last Modified: 10/03/2002