RH v Secretary, Department of Communities and Justice

[2021] NSWCA 101

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

RH v Secretary, Department of Communities & Justice [2021] NSWCA 101

Hearing dates:

17 May 2021

Date of orders:

17 May 2021

Decision date:

20 May 2021

Before:

McCallum JA

Decision:

Applicant’s notice of motion dismissed

Catchwords:

CIVIL PROCEDURE — Stay of proceedings — Inherent power — Application for stay of proceedings in Children’s Court pending determination of summons seeking leave to appeal from summary dismissal of proceedings in the Supreme Court invoking parens patriae jurisdiction — Applicable test

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW) ss 43, 45, 233

Supreme Court Act 1970 (NSW) s 23

Uniform Civil Procedure Rules 2005 (NSW) r 13.4

Cases Cited:

CM v Secretary, New South Wales Department of Communities and Justice [2020] NSWSC 1740

Dillon v Boland; Dillon v Cush [2012] NSWCA 364

General Steele Industries v Commissioner for Railways (1964) 112 CLR 125

Nikolaidis v Legal Services Commissioner [2005] NSWCA 91

Thomson v Young [2013] NSWCA 300

Category:

Procedural rulings

Parties:

RH (anonymised) (applicant)
Secretary, Department of Communities & Justice (respondent)

Representation:

Counsel:
In person and M Robinson SC (applicant)
B Dean (first respondent)
E Canning (solicitor) (young person DH)

Solicitors:
Crown Solicitor’s Office (respondent)

File Number(s):

2021/00136677

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Citation:

[2021] NSWSC 519

Date of Decision:

12 May 2021

Before:

Sackar J

File Number(s):

2020/00365503

Judgment

1. McCALLUM JA: The applicant is the father of three children who have been taken into the care of the Secretary of the Department of Communities and Justice in the exercise of the Secretary’s powers under the Children and Young Persons (Care and Protection) Act 1998 (NSW). That occurred on 25 March 2020. Shortly after taking that step, the Secretary commenced proceedings in the Children's Court for care orders, as required by s 45 of the Act. Those proceedings are currently being heard in that Court, having earlier this year been set down for hearing over two separate weeks, the first of which commenced on Monday, 17 May 2021.

2. Following the commencement of the proceedings in the Children’s Court, the applicant commenced proceedings in the Equity Division of the Supreme Court seeking a declaration that the removal of the children from his and his wife’s care was unlawful and an order restoring the children to their care. Those proceedings invoked the Supreme Court's parens patriae jurisdiction.

3. On 15 April 2021, the proceedings in the Equity Division were summarily dismissed: [2021] NSWSC 519 (Sackar J), primarily on the basis that the proceedings amounted to an abuse of process as they duplicated the issues to be determined by the Children’s Court. The decision applied long-standing authority which holds that the parens patriae jurisdiction of the Supreme Court should not be exercised in a way that interferes with the jurisdiction of a specialist court such as the Children’s Court except in an exceptional case.

4. By notice of appeal dated 14 May 2021 (the last Friday before the hearing in the Children's Court was due to commence), the applicant commenced an appeal from the orders of Sackar J. By notice of motion of the same date, the applicant sought a stay of the hearing in the Children's Court and an expedited hearing of the appeal from the Supreme Court. The stay application was listed on an urgent basis before me commencing at 8:45am on Monday, 17 May 2021 in circumstances where the hearing in the Children’s Court was due to commence at 10am that morning.

5. The applicant was representing himself when the appeal proceedings were commenced and, initially, in the application before me. However, at the outset of the hearing, he sought to have the matter stood down so that Mr Robinson SC could argue the application for him. I did not refuse that request but, in light of the time pressure attending the application, continued to hear from the applicant in the meantime. Through a combination of the submissions put by the applicant whilst awaiting the arrival of Mr Robinson and the submissions subsequently put by Mr Robinson, it emerged that the grounds for the stay application were as follows:

1. the decision of the primary judge entailed error in that the case did not meet the high bar for summary dismissal;

2. the proceedings before the primary judge had merit because the Children's Court lacks jurisdiction to determine the care proceedings; and

3. if the stay was not granted, the appeal would be rendered futile.

6. I refused the stay application, reserving my reasons. These are my reasons for refusing the application.

Applicable test

7. The application was unusual in that the proceedings sought to be stayed were not those from which the appeal is brought. Presumably owing to the urgency with which the application was heard, no party addressed the question of this Court’s power to grant a stay in those circumstances. It is convenient to assume, without deciding, that the Court might, in an appropriate case, make such an order in exercise of the Court’s inherent power, which is “expressed and reconferred by s 23 of the Supreme Court Act 1970”: Nikolaidis v Legal Services Commissioner [2005] NSWCA 91 at [17] (Bryson JA). In that case, Bryson JA at [18] said of the Court’s inherent power:

“The power exists because it is necessary for the administration of justice, and it is to be exercised where it is necessary to exercise it.”

8. In principle, it is not inconceivable that it might be found necessary for the administration of justice to stay a proceeding pending the determination of an appeal in a different proceeding. However, assuming such an order is within the Court’s inherent power, it is a power to be exercised sparingly. That is the approach that has been taken in the more common situation of an application to stay proceedings in another court pending an appeal against an interlocutory decision in those proceedings: see Thomson v Young [2013] NSWCA 300 (Leeming JA) and the authorities considered therein at [6]-[9]. The decisions to which Leeming JA referred in that decision included the decision of Bryson JA in Nikolaidis referred to above, in which his Honour drew a distinction between applications for a stay of execution of a judgment and applications for a stay of pending proceedings. Of the latter, Bryson JA said at [18]:

“The power to order a stay is discretionary and such an intervention should not take place lightly. The outcome which is likely if there is no stay must be so adverse and severe that the attainment of justice requires interlocutory intervention. It must be shown that it is likely that there will be some adverse consequence of allowing the proceedings under challenge to continue and that the outcome will be so difficult to remedy, or otherwise so adversely severe in its impact, that intervention by the Court of Appeal should take place notwithstanding that there has not been an opportunity for full consideration.”

9. That is the approach I took to the present application.

Decision of the primary judge

10. The complaint that the decision of the primary judge entailed error in that the case did not meet the high bar for summary dismissal can be disposed of quickly. The primary judge did not dismiss the proceedings on an application of the General Steele test (General Steele Industries v Commissioner for Railways (1964) 112 CLR 125). The proceedings were dismissed under UCPR 13.4(1)(c) as an abuse of process. The decision of the primary judge was an orthodox application of the long-recognised principle that the Supreme Court's parens patriae jurisdiction should not be exercised to interfere with orders that have been made by judicial officers exercising specialist jurisdiction, such as those in the Children's Court, except in an exceptional case. The relevant authorities are conveniently collected in the decision of Rees J in CM v Secretary, New South Wales Department of Communities and Justice [2020] NSWSC 1740 at [33]-[38].

Argument that the Children's Court lacks jurisdiction to determine the care proceedings

11. The applicant contended that his proceedings in the Equity Division warranted that exceptional course, and so were not liable to be dismissed, because they raised an issue concerning the propriety of the conduct of the departmental officers who commenced the proceeding in the Children’s Court. The applicant submitted that the issue was one of public importance, which he said was not about him or the children but concerned the broader issue of the validity of proceedings commenced following the execution of a “fraudulent” warrant.

12. In order to consider that issue, it is necessary to explain something about the course taken by the Secretary prior to commencing the proceedings in the Children's Court.

13. The Secretary has power, in an appropriate case, to remove a child from a place of risk in accordance with s 43 of the Children and Young Persons (Care and Protection) Act. However, that urgent step may only be taken if the Secretary is satisfied on reasonable grounds that the child is at immediate risk of serious harm and that the making of an apprehended violence order would not be sufficient to protect the child.

14. In the present case, the Secretary determined instead to obtain a search warrant under s 233 of the Act. That section authorises the Secretary (or a police officer) to apply for a warrant if he or she has reasonable grounds for believing “that there is in any premises a child or young person at risk of serious harm”. The authorised officer to whom the application is made may issue the warrant if satisfied on reasonable grounds that a child or young person is or may be at risk of serious harm and that the making of an apprehended violence order would not be sufficient to protect the child or young person from that risk. Subsection 233(2) provides:

233   Power of search for and removal of children and young persons in need of care and protection

…

(2)     An authorised officer to whom such an application is made may issue a search warrant—

(a)     in the case of an application under subsection (1)(a), if satisfied on reasonable grounds—

(i)   that a child or young person is or may be at risk of serious harm, and

(ii)    that the making of an apprehended violence order would not be sufficient to protect the child or young person from that risk, or

(b)    in the case of an application under subsection (1)(b) or (c), if satisfied that there are reasonable grounds for doing so.

…

15. The applicant’s children were removed from his and his wife's care on 25 March 2020 pursuant to warrants issued by the Registrar of Bankstown Local Court on 23 March 2020. The applicant contends that the Registrar did not state in her reasons for granting the warrant that she was satisfied on reasonable grounds that the making of an apprehended violence order would not be sufficient to protect the children from the risk of serious harm: cf s 233(2)(a)(ii). The applicant contends on that basis that the warrant pursuant to which the children were removed was invalid. As I understood his submissions, he goes so far as to assert that the warrant was obtained fraudulently, although the basis for that contention was not clearly articulated other than by way of assertion. Finally, the applicant contends that it follows that the Children's Court lacks jurisdiction to determine the Secretary's application for care orders.

16. Assuming all of the relevant factual premises are established, the last proposition is contestable. The Children and Young Persons (Care and Protection) Act authorises the commencement of proceedings even in circumstances where the children have not been removed or taken into the care of the Secretary. Mr Robinson submitted that the Secretary has decision-making powers which, if they miscarry, raise a doubt as to the jurisdiction of the Children’s Court. In circumstances where the Court has jurisdiction whether or not children have been removed, is not clear to me why the invalidity of a warrant should necessarily vitiate the proceedings or deprive the Children’s Court of jurisdiction in the matter, although it may of course have other consequences. However, it was not possible to reach a concluded view on that issue in the constrained circumstances of the present application.

Futility

17. Mr Robinson submitted that, if a stay of the Children's Court proceedings were not granted, the appeal would be futile. In a sense, that is another way of articulating the primary reason given by Sackar J for dismissing the proceedings in the Equity Division as an abuse of process. His Honour noted at [8] that the same kind of relief was sought in both proceedings. In addition, his Honour noted the principle to which I have already referred, that the Supreme Court will not permit the parens patriae jurisdiction to be invoked so as to interrupt care proceedings in the Children's Court except in an exceptional case.

18. If the purpose of the proceedings in the Supreme Court was to stop the proceedings in the Children’s Court, it may be accepted that the utility of the appeal is diminished. However, that is not to say that the applicant is deprived of the opportunity to make a case that the warrant was invalid.

Other relevant considerations

19. As already noted, the appeal was commenced on the last business day before the commencement of the 10 day hearing in the Children’s Court. The applicant explained that he did not receive the published written reasons for the judgment given by Sackar J ex tempore on 15 April 2021 until 12 May 2021. Had the applicant been represented at that time, that would have been an unsatisfactory explanation for the delay: Dillon v Boland; Dillon v Cush [2012] NSWCA 364 at [5] (Allsop CJ, McColl JA).

20. I accept that the Court might be prepared to take a less stern approach in the absence of legal representation. However, the impact of the delay is unchanged by that circumstance; the simple fact is that the grant of a stay would have caused considerable inconvenience to the Children’s Court and the parties to those proceedings, not to mention the overriding consideration of the interests of the children with whom the proceedings are concerned. One of the objects of the Children and Young Persons (Care and Protection) Act is to provide for children to receive such care and protection as is necessary for their safety, welfare and wellbeing.

21. The Children’s Court is best positioned to make a determination on that issue and to do so promptly; to delay that course in the interests of a question of public interest concerning the validity of a warrant would be inimical to the objects of the Act. That is not to derogate from the importance of the issue raised but only to give primacy to the bests interests of the children, which can be explored having regard to the full range of issues sought to be raised by the parties, including any relevant fact underlying the allegation of fraud in obtaining the warrant.

22. I concluded that, even if there was force in the argument that the warrant was invalid, there were overwhelming reasons for refusing to stay the proceedings in the Children’s Court.

23. First, as acknowledged by Mr Robinson, that Court has authority to determine whether it has jurisdiction to hear the proceedings. Further, the applicant’s characterisation of the proceedings the subject of the proposed appeal as being concerned with an issue of public importance rather than being about him or the children rather emphasises the importance of the hearing in the Children's Court proceeding. The Secretary commenced those proceedings in March 2020. They have been listed for hearing on three prior occasions. Counsel for the Secretary informed me that a hearing fixed in July 2020 was vacated on the application of a lawyer who had recently been retained by the applicant; that a hearing in September 2020 could not proceed because the applicant was unwell and that a hearing fixed in December 2020 also did not proceed. The hearing proceeding this week was fixed in early 2021. As submitted on behalf of the Secretary, the appropriate care orders for the children should be determined as a matter of urgency. The quickest way for that to occur was to allow the proceedings in the Children's Court to proceed.

**********

Decision last updated: 20 May 2021