SB, MF v Minister for Education and Child Development - [2017] SASC 161

SUPREME COURT OF SOUTH AUSTRALIA
(Appeals to a Single Judge: Civil)
SB, MF v MINISTER FOR EDUCATION AND CHILD DEVELOPMENT & ANOR
[2017] SASC 161
Judgment of The Honourable Justice Hinton
10 November 2017
FAMILY LAW AND CHILD WELFARE - CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION - CHILDREN IN NEED OF PROTECTION - PROCEEDINGS RELATING TO CARE AND PROTECTION - OTHER MATTERS
On 1 August 2016, a single Judge of the Supreme Court allowed SB’s appeal against an order made by the Youth Court transferring to the State of Queensland an order that M be under the guardianship of the South Australian Minister for Families and Communities until he attains the age of 18. The appeal Judge set aside the order and restored ancillary orders that allowed SB and his mother access to M on certain terms. A number of unrelated grounds of appeal were dismissed as were four interlocutory applications filed by SB.
SB filed a Notice of Appeal on 19 August 2016 complaining of the appeal Judge’s decision to dismiss the unrelated grounds and the interlocutory applications. The Minister subsequently filed an application seeking to dismiss the Notice of Appeal on the basis that it was an abuse of process, or in the alternative, staying the application until further order.
Subsequently, SB also filed a number of interlocutory applications dated 19 August 2016, 28 October 2016, 25 November 2016, 21 December 2016, 25 July 2016 and a Notice of Appeal dated 25 August 2017. A further Notice of Appeal dated 7 September 2017 was received by the Registrar but not filed.
Held:
1. The Minister’s application seeking to dismiss the Notice of Appeal dated 19 August 2016 as an abuse of process is granted.
2. The Notice of Appeal dated 19 August 2016 is dismissed pursuant to rules 193(b), 295(1)(c) and 295(1)(h) of the Supreme Court Civil Rules 2006.
3. The interlocutory applications filed 19 August 2016, 28 October 2016, 25 November 2016, 21 December 2016, 25 July 2017 and 25 August 2017 are dismissed pursuant to rule 193(b) of the Supreme Court Civil Rules 2006.
4. Pursuant to rule 53(3) of the Supreme Court Civil Rules 2006, the Registrar is directed to reject the Notice of Appeal dated 7 September 2017.
Slinko v Guardianship and Administration Tribunal [2006] 2 Qd R 279; Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197; Russell v Polites Investments Pty Ltd [2016] SASC 129; Staats v United States of America (1992) 66 ALJR 793; Kronen v Commercial Motor Industries (2016) 124 SASR 427; Westwill Pty Ltd & Anor v The Barossa Council [2016] SASC 189; ACCC v CG Berbatis Holding Pty Ltd and Others (1999) 167 ALR 303, applied.

SB, MF v MINISTER FOR EDUCATION AND CHILD DEVELOPMENT & ANOR
[2017] SASC 161
Civil
HINTON J.
Introduction

On 16 November 2011, Judge Prescott, sitting in the Youth Court, made an order (the Care and Protection Order) under s 38(1)(d) of the Children’s Protection Act 1993 (SA) (the Protection Act) placing M, a boy then nine years old, under the guardianship of the Minister for Families and Communities[1] until such time as M attains the age of 18 (the primary order[2]). That order was made with the consent of M’s mother and maternal grandmother, SB. Ancillary orders granting SB and M’s mother supervised access as agreed with the Minister and subject to M’s wishes (the ancillary orders[3]) were also made.
[1] Now the Minister for Education and Child Development (the Minister).
[2] Made pursuant to s 38(1)(d) of the Protection Act.
[3] Made pursuant to s 38(1)(f) of the Protection Act.
On 10 August 2015, the Senior Judge of the Youth Court made an order under s 54F of the Protection Act transferring the Care and Protection Order to the State of Queensland (the Variation Order). The intention of the Variation Order was to facilitate M’s placement with relatives who lived in Brisbane and for them to qualify for assistance from the Queensland Department of Communities, Child Safety and Disability Services (the Queensland Authority).
On 13 August 2015, SB instituted an appeal to this Court against the Variation Order. That appeal was heard by a single Judge of the Court. On 1 August 2016, judgment on the appeal was delivered in SB’s favour. The appeal Judge set aside the Variation Order and restored the ancillary orders for access to M that were made with the Care and Protection Order on 16 November 2011. All other unrelated grounds of appeal were struck out and four interlocutory applications[4] that had been filed by SB were dismissed.
[4] FDNs 2, 9, 12 and 13.
Subsequently, on 19 August 2016, SB filed a Notice of Appeal to the Full Court[5] complaining of the appeal Judge’s decision to dismiss the balance of the grounds of appeal and the four interlocutory applications. The Minister has since filed an application seeking the dismissal of the Notice of Appeal on the basis that it is an abuse of process, or, in the alternative, staying the action until further order.[6] I grant the Minister’s application and dismiss the Notice of Appeal. My reasons are set out below.
[5] SCCIV-16-1135 FDN 1.
[6] SCCIV-16-1135 FDNs 6 and 12.
Five further interlocutory applications[7] instituted by SB since 1 August 2016 have been referred to me by the Supreme Court Registry in addition to two further Notices of Appeal. I would dismiss each of the additional interlocutory applications and the Notice of Appeal dated 25 August 2017.[8] In addition I would direct the Registrar to reject the Notice of Appeal dated 7 September 2017.[9]
[7]    FDNs 37 in 959 of 2015, 39 in 959 of 2015, 2 in 1135 of 2016, 14 in 1135 of 2016, and 30 in 1135 of 2016.
[8]    SCCIV-16-1135 FDN33.
[9]    Date stamped as received on 8 September 2017.
Background and the appeal to this Court
M was relocated to Queensland by the Minister prior to the making of the Variation Order. The Variation Order was subsequently sought to facilitate support by the Queensland Authority for M and his carers. A transfer order, which the Variation Order was in the main, can only be made under s 54F of the Protection Act if, amongst other things, “the relevant interstate officer has consented in writing to the transfer and to the proposed terms of the order”. The Queensland Authority provided its consent by letter dated 23 July 2015. That consent was made conditional upon:
i.obtaining a child protection order in accordance with s 61 of the Child Protection Act 1999 (Qld) (the Queensland Act);
ii.receipt of a court order to effect judicial transfer of the child protection order to Queensland;
iii.M’s placement remaining viable, stable and appropriate at the point of transfer; and
iv.M’s carer being granted a certificate of approval as foster carers under the Queensland Act.
The Variation Order, to which reference has already been made, stated:
i.the Care and Protection Order be varied to its primary order only; and
ii.the ancillary orders be removed on the basis of procedural necessity to facilitate the transfer of the file to the Queensland Authority.
In her judgment on the appeal to this Court the appeal Judge noted:[10]
… over the course of the proceedings in the Youth Court, it was noted that the carers struggled at times with the care of M. The Queensland Authority had been given casework tasks which assisted in facilitating access but they were unable, without registration of the Order in Queensland, to provide support services or intervention to work with the family.
To assist K and her partner [the relatives of M to whom his care in Queensland was entrusted], the Department contracted a private agency, HOPE, to work with the family and specifically with M. In October 2015, despite working with HOPE, K and her partner advised they could no longer care for M on a full time basis but would assist with respite and have M in the school holidays.
At that time, M was to remain in Queensland. The Department originally sought a home placement through the Queensland Authority, however as none was available, on 26 January 2016, M became a boarder at a boys’ college in Queensland.
Due to the breakdown of M’s placement, the Queensland Authority has advised that it needs to reconsider accepting the transfer of the Order due to the instability of the placement and costs associated with M boarding at a private college.
The Queensland Authority has advised that the Department would need to make a new request for the transfer of the Order and again seek conditional consent from the Queensland Authority. The Department considers it unlikely that the required consent will be forthcoming given the Queensland Authority’s intimation that the Department needs to retain case management and responsibility for the costs of the placement.
[10] SB, MF v Minister for Education & Child Development [2016] SASC 116 at [25]-[29].
Subsequently M expressed a desire to attempt reunification with his mother who lives in Victoria. His mother had expressed a similar desire. This possibility was to be explored by the Minister. The appeal Judge was advised that it was highly unlikely that M would remain in Queensland and that given the fluidity of M’s situation the South Australian Department for Education and Child Development was best placed to administer the Care and Protection Order.[11]
[11] SB, MF v Minister for Education & Child Development [2016] SASC 116 at [30]-[34].
On 13 August 2015, SB, who is unrepresented, filed a Notice of Appeal against the Variation Order. The grounds of appeal were as follows:
1.My access order deleted 10-8-15
2.Transfer of file to Queensland 10-8-15
3.The whole of the order 10-8-15
4.The order and judgment has not been printed and is not available as yet because
5.I was not served a document in trial booklet and
6.Was served kinship care initial assessment report on 10-8-15 just before hearing of 10-8-15 and
7.Not sufficient time
The Notice of Appeal was called on for the purposes of directions on 11 February 2016. The directions hearing was conducted by the Judge who ultimately heard the appeal. She made orders joining M as a party. At the same time the Judge intimated that it was her view that the appeal was against an interlocutory order and that as such, the appeal lay to a single Judge. Subsequently, the respondent advised the Court that notices had been issued under s 78B of the Judiciary Act 1903 (Cth) as her appeal involved a matter arising under or involving the interpretation of the Constitution.
On 9 May 2016, the Minister filed an interlocutory application seeking orders:
i.declaring that the appeal filed on 13 August 2015 was interlocutory in nature;
ii.dismissing the respondent’s interlocutory applications of 20, 22 and 25 January 2016 (being FDNs 2, 9, 12 and 13);[12]
iii.dismissing the appeal insofar as it relates to everything other than the deletion of the access order and the order transferring the file to Queensland;
iv.allowing the appeal insofar as it was not summarily dismissed; and
v.setting aside the Variation Order.
[12] In file SCCIV-15-959.
That application was supported by M’s legal representative.[13]
[13] M’s legal representative was appointed as an independent children’s lawyer pursuant to s 48(1) of the Act.
As will be seen, SB’s constitutional argument involves s 109 of the Constitution. The appeal Judge rejected that argument. Her dispositive orders reflect an acceptance of the Minister’s submissions. She recorded those submissions as follows:[14]
Counsel for the Minister submitted that, in light of the breakdown of M’s placement in Queensland and the fact that the Queensland Authority has indicated it is no longer prepared to take on the administration of the Order, for the administration of the Order to return to the Department it would first have to be registered in Queensland. The Department would then have to issue proceedings in the Queensland Children’s Court to have the matter transferred back to South Australia.
It was submitted that whilst the Order cannot be registered in Queensland the Queensland Children’s Court has no jurisdiction because there is no child protection order or proceeding in Queensland to transfer back to South Australia.
Counsel proposed that in these unusual circumstances, in order to overcome the difficulty or lacuna, the Minister and the appellant can achieve a mutually satisfactory result if the appeal is allowed on a limited basis so that the Variation Order can be quashed or set aside pursuant to s 22(3) of the Youth Court Act.
During the hearing on 24 June 2016, in supporting the Minister’s application, counsel for M stated that in view of the significant change in M’s circumstances it was in M’s best interest for the Order to be administered in South Australia.
An order quashing/setting aside the Variation Order will return the parties to the position they were in prior to the Chief Executive Officer’s application to transfer the Order to Queensland. This means the ancillary orders made by Judge Prescott on 16 November 2011 including the appellant’s supervised access order, will be restored.
Bearing in mind the objects of the Act prescribed by s 3, and noting that M is not receiving any care and support from the Queensland Authority the approach suggested by the Minister is in M’s best interests.
(footnotes omitted.)
[14] SB, MF v Minister for Education & Child Development [2016] SASC 116 at [41]-[46].
As indicated the appeal was successful in part. The Judge ordered:[15]
As I have determined the appeal against the Variation Order is interlocutory in nature within the meaning of s 22(2)(b) of the Youth Court Act, I make the following orders allowing the appeal and setting aside the Variation Order in light of the change in M’s circumstances since the Variation Order and the legal difficulty/lacuna created by the interaction of the Act and the Qld Act:
1.The appellant’s interlocutory applications FDN 2, 9, 12 and 13 are dismissed.
2.The appeal is allowed for the purposes of setting aside the Variation Order made by the Youth Court on 10 August 2015 thereby restoring the ancillary orders for access to the Order made by Judge Prescott on 16 November 2011.
3.The remaining grounds of the appeal are struck out on the basis that they are incompetent and/or disclose no appealable error for which appellate remedy is available and/or seek relief which this Court cannot give.
[15] SB, MF v Minister for Education & Child Development [2016] SASC 116 at [69].
If the Minister succeeds on his application to dismiss the Notice of Appeal filed 19 August 2016 no need arises to consider the interlocutory applications subsequently filed by SB because those applications could only be ancillary, procedural or adjectival to the Notice of Appeal. Accordingly, I deal with the Minister’s application first. Before doing so, however, I set out the grounds of appeal which SB seeks to pursue in the Full Court.
The Grounds of Appeal in the Notice of Appeal to the Full Court[16]
[16] FDN 1 in 1135 of 2016.
As indicated, in her Notice of Appeal filed 19 August 2016, SB appeals the orders dismissing the interlocutory applications subject of FDNs 2, 9, 12 and 13 in SCCIV-15-959 and the dismissal of the balance of her grounds of appeal. She advances 17 grounds of appeal. I reproduce those grounds verbatim:
1.Discrimination
2.Criminal matters in a Civil Court
3.Dispensing with parliamentary legislation
4.Ministerial breaches of the Children’s Protection Act 1993
5.Unresolved Constitutional Matter
6.Senior Judge McEwen said that my appeal would have to go to the Full Court
7.Illegal proceedings
8.No Section 38 investigation
9.A complex file cannot be transferred to another state
10.A conflict of interest in the Office of the Attorney-General
11.Disputes between the arguments of Crown Solicitor Teresa Scott and Crown Solicitor TN Golding about who is the applicant of 24-2-2015 and whether or not I am guardian of the child
12.[M] is not a child under any Family Law Order
13.Crown Solicitor TN Golding presenting nonsense to Justice Bampton because he does not know the case or the story or the scenario
14.I am not a child
15.Crown Solicitor TN Golding disputes the only fact established that [M] has 2 guardians, his mother and me
16.Families SA a failure in the public arena
17.Other
The power vested in a single Judge to reject, stay or dismiss a Notice of Appeal to the Full Court
SB’s appeal from the single Judge of this Court lies to the Full Court under s 50(1)(a) of the Supreme Court Act 1935 (SA). The Minister’s application, however, relies upon a different source of power. In this regard the Minister points to rules 53, 131, 192, 193 and 295(1)(h) of the Supreme Court Civil Rules 2006 (SA) (the 2006 Rules) as supplying a single Judge of this Court with power to dismiss the Notice of Appeal. These rules, made in the exercise of the rule making power contained in s 72 of the Supreme Court Act 1935, are supported, at least in part, by the inherent power this Court possesses to protect its processes from abuse.[17]
[17] Pt T Bayan Resources TBK v BCBC Singapore Pte Ltd and Others (2015) 258 CLR 1; NH v DPP (SA) (2016) 90 ALJR 978.
Rule 192 expressly provides this Court with power to stay proceedings if the justice of the case requires, and rule 193(b), to dismiss proceedings if they are frivolous, vexatious or an abuse of process. Proceeding is defined in rule 4 and includes appellate proceedings. It is tempting to consider what each of frivolous, vexatious and abuse of process mean in isolation in determining the ambit of the power provided by rule 193(b), but in reality the frivolous proceeding – one which does not warrant serious attention[18] – and the vexatious proceeding – one pursued in order to harass a party[19] – may be considered examples of the broader concept of an abuse of process. That concept is not susceptible to concise definition. In fact it is often said that the categories of abuse of process are not closed.[20] Here, however, in considering the ambit and nature of the power contained in rule 193(b) I think it sufficient to refer to the judgment of Deane J in Staats v United States of America where, in relation to a power that similarly permitted the High Court to refuse to accept or exercise jurisdiction, his Honour said:[21]
The rule of law which permeates our system of government requires that all persons have access to the courts of the land…
Nonetheless, considerations of justice, the interests of plaintiffs themselves and the public interest combine to require that there be procedures for insuring that a court can prevent the institution or maintenance of frivolous or vexatious proceedings. The interests of justice demand that a defendant (and those who are alleged to have acted unlawfully on behalf of a defendant) be protected from the cost, time and personal stress involved in defending such proceedings. The experience of those involved in the administration of justice in this country is that a plaintiff who persists in bringing hopeless proceedings is commonly convinced of the righteousness of his or her cause and will suffer increased stress, damage to health and, commonly, financial ruin if proceedings which are clearly foredoomed to fail are not halted at the outset. The public interest demands that court time and facilities, particularly the very limited time and facilities of this Court, are not devoted to pointless and misconceived litigation to the detriment of genuine disputes.
[18] Slinko v Guardianship and Administration Tribunal [2006] 2 Qd R 279 at 283 (de Jersey CJ).
[19] Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 247.
[20] Jago v District Court of New South Wales and Ors (1989) 168 CLR 23; Jackson v Sterling Industries Ltd (1987) 162 CLR 612.
[21] Staats v United States of America (1992) 66 ALJR 793 at 793. Order 58 r 4(3) was not materially different to rule 53(3) of the 2006 Rules which provides power to strike out documents where they are an abuse of process.

The question arises as to whether a single Judge of the Court may exercise the power contained in either rule 192 or rule 193 in relation to an appeal to the Full Court.
To answer this question, the starting point is rule 295(1) of the 2006 Rules which enumerates a number of powers which the Court may exercise in relation to an appeal or an application for permission to appeal. Importantly rule 295(3) provides:
(3)The powers conferred by this rule and any other power which is incidental to the conduct or determination of an appellate proceeding or of an application for permission to appeal, including applications for stays of execution under rule 300 or section 17 of the Enforcement of Judgments Act 1991, may be exercised:
(a) in relation to appeals to be heard by the Full Court, on the hearing of the appeal or application by the Full Court or in interlocutory proceedings before a single judge;
(b) in relation to all other appeals, on the hearing of the appeal or application or in interlocutory proceedings before a single Judge or Master.
The chapeau to rule 295(3) picks up any other power which is incidental to the conduct or determination of an appellate proceeding. In my view, the powers contained in rules 192 and 193 and the inherent power possessed by the Court are powers incidental to the conduct of an appellate proceeding. In Harris v Caladine, in a paragraph repeatedly quoted in the High Court, Toohey J described the inherent powers possessed by courts such as this as “incidental and necessary to the exercise of the jurisdiction or the powers so conferred”.[22] Here the powers contained in rules 192 and 193 and the inherent power possessed by the Court may be exercised in subordinate conjunction with the appellate jurisdiction conferred by s 50 of the Supreme Court Act1935.
[22] (1991) 172 CLR 84 at 136 citing Parsons v Martin (1984) 5 FCR 235 at 64. And see, NH v Director of Public Prosecutions (2016) 90 ALJR 978 at 995 [68] (French CJ, Kiefel and Bell JJ) and the authorities there footnoted.
Mention may also be made of rule 295(1)(h) which includes a power to summarily dismiss the appeal if it is obvious that it cannot succeed and of rule 295(1)(c) which provides that the Court may make, vary or reverse interlocutory orders in relation to the appeal or application for permission to appeal, or vary or reverse interlocutory orders of the court or tribunal from which the appeal arises. In South Australia v Lampard-Trevorrow White J observed that an “order for the stay of proceedings, even a permanent stay, is generally regarded as interlocutory in nature.”[23] Whilst White J does not appear to have decided this issue, as the parties agreed he had the power, he nonetheless proceeded to entertain the application made to him, sitting alone, to permanently stay an appeal to the Full Court. I do not understand White J as simply acceding to the parties’ agreed view as opposed to being satisfied that such view was correct.[24] I proceed on the same basis. In my view an order staying proceedings is an order about the course or conduct of an appellate proceeding in that it is an order that the proceeding shall not proceed – it is an order to the effect that the court refuses to exercise jurisdiction.
[23] [2008] SASC 370 at [16] and the authorities cited therein.
[24] After all it is the first duty of a court to decide if it has jurisdiction to decide an issue; Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398.
I proceed on the basis that the power conferred by rules 192 and 193(b) are picked up by rule 295(3), and thus, like the powers contained in rule 295(1), may be exercised by a single judge.
Before leaving rule 295(1)(h) I note that in Russell v Polites Investments Pty Ltd Stanley J said:[25]
[25] [2016] SASC 129 at [28]-[30].
6SCR 295(1)(h) provides that the Court may summarily dismiss an appeal or an application for permission to appeal if it is obvious that it cannot succeed.
In an application for summary dismissal the onus is on the applicant to prove that it is obvious the appeal cannot succeed. The power is to be exercised cautiously and only where it is obvious that the appeal is without merit. Ultimately, the test is fixed by the language of the rule. The court must be satisfied that it is obvious that the appeal cannot succeed before it will make an order for summary dismissal. Generally a judge would not exercise the power unless it is clear beyond argument that the appeal must fail. While some previous judgments of this Court suggest that the power would not be exercised unless the appeal is so defective in form and substance it must be struck out either as failing to invoke the jurisdiction of the Full Court or clearly as an abuse of process, those authorities appear to be informed by the terms of the old r 95.08. The power conferred by that rule was more limited and confined to dismissing appeals which were incompetent. The terms of 6SCR 295(1)(h) are wider. The power conferred is similar to the power conferred by 6SCR 232 which confers power on the Court to grant summary judgment. That power must be exercised with caution and should not be exercised unless it is clear that there is no real question to be tried. In O’Brien v Bank of Western Australia Ltd the Court of Appeal of New South Wales summarised those principles as follows:
The High Court decision in Spencer v The Commonwealth [2010] HCA 28; 241 CLR 118 was concerned with s 31A(2) of the Federal Court Act 1976 (Cth) but the following principles stated in it are of general application:
(a) On a summary judgment application, the real issue is whether there is an underlying cause of action or defence, not simply whether one is pleaded (at [23]).
(b) The critical question can be expressed as whether there is more than a “fanciful” prospect of success (at [25]) per French CJ and Gummow J) or whether the outcome is so certain that it would be an abuse of the process of the Court to allow the action to go forward (at [54] in the judgment of the plurality). Demonstration of the outcome of the litigation is required, not an assessment of the prospect of its success (ibid).
(c) Powers to summarily terminate proceedings must be exercised with exceptional caution (ibid at [55]; see also French CJ and Gummow J at [24]).
The power conferred by the rule may be exercised by a single Judge of the Court.
(footnotes omitted.)
The text of rule 192 is different to that of rule 295(1)(h). This is not the case in which to explore the difference. Whatever it may be, I think it obvious that any case falling within rule 295(1)(h) would also fall within the ambit of rule 192.
Rule 117 is a further source of power. Relevantly, it provides:
117-Power to make orders controlling conduct of litigation
(1)The Court may make any order it considers necessary for the proper conduct of a proceeding or otherwise in the interests of justice.
Note-
In addition to the powers specifically mentioned in this rule, the Court's powers to enforce compliance with the rules (rule 12) and the Court's powers to penalise procedural irregularities in costs (rule 13) should be noted.
(2)The Court may (for example)-
…
(e) strike out a document or proceeding if the Court considers it frivolous, vexatious or an abuse of the process of the Court;
…
The breadth of this power was also considered by Stanley J in Russell v Polites Investments Pty Ltd where he said: [26]
Pursuant to 6SCR 117(2)(e) the court may strike out a document or proceeding if the court considers it frivolous, vexatious or an abuse of the process of the court. The definition of “proceeding” in 6SCR 4 includes appeals. “Frivolous” is generally understood to mean something not worthy of serious attention. In Slinko v Guardianship and Administration Tribunal de Jersey CJ held that an appeal is frivolous or vexatious where it is paltry, not warranting serious attention and manifestly futile. The categories of abuse of process are manifold and not closed. They include where a party responsible for prosecuting a matter does not diligently prosecute their claim, where there is no arguable case in fact or in law, or where the claim is certain to fail.
(footnotes omitted.)
[26] [2016] SASC 129 at [31].
In Kronen v Commercial Motor Industries Pty Ltd the Full Court referred to rule 117(2)(e) and stated:[27]
It is common for court rules to provide for the dismissal of proceedings which are an abuse of process without a hearing and determination of the merits. SCR 117(2) empowers this Court, in the management and control of actions, to strike out documents or proceedings which have been filed if the Court considers them frivolous, vexatious or an abuse of process of the Court.
…
The powers conferred by SCR 117(2) and IPR 60(1) do not finally resolve a controversy by the exercise of judicial power but they confer interlocutory powers which must be exercised judicially. The obligation to proceed judicially includes giving the parties an opportunity to be heard.
Both SCR 117(2) and IPR 60(1) apply to documents that initiate a proceeding, that is to say the substantive proceeding, and an interlocutory step filed in that proceeding…
(footnote omitted.)
[27] (2016) 124 SASR 427 at [23]-[26].
The Full Court having confirmed the power contained in rule 117(2)(e) as interlocutory in nature, it may be exercised by the Court constituted of a single Judge.[28]
[28] Rule 295(1)(c) of the 2006 Rules.
Lastly, resort may also be had to rule 53 which, amongst other things, empowers a Judge of this Court to direct the Registrar to strike from the Court file any filed document if it contains matter that is scandalous, frivolous or vexatious. In Westwill Pty Ltd & Anor v The Barossa Council I had occasion to consider rule 53.[29] I said:[30]
[29] [2016] SASC 189.
[30] Westwill Pty Ltd & Anor v The Barossa Council [2016] SASC 189 at [15]-[20].
In this Court in Westwill Pty Ltd v Byrt Gray J touched upon the question of when a document would amount to an abuse of process within the meaning of Rule 53. He said:
Rule 53(1) as extracted, provides that a document is an abuse of the process of the Court if it contains matter that is scandalous, frivolous or vexatious. It is apparent from the terms of Rule 53 that the Rule does not operate to limit what may amount to an abuse of the process of the Court. The terms “scandalous, frivolous or vexatious” in this context should be given a wide meaning. It is to be observed that Masters of this Court will generally direct the Registrar to reject a document where pleadings do not disclose an intelligible cause of action, or no intelligible grounds for appeal. Such documents fall within the wide meaning referred to above.
I agree. The rule is made in support of this Court’s inherent power to protect its processes. It is now well settled that a superior court has all control over its own processes, including an ability to prevent or protect itself from abuse or misuse of its processes. In Assistant Commissioner Condon v Pompano Pty Ltd French CJ quoted with approval the following passage from Jacob, “The Inherent Jurisdiction of the Court”:
[T]he essential character of a superior court of law necessarily involves that it should be invested with a power to maintain its authority and to prevent its process being obstructed and abused. Such a power is intrinsic in a superior court; it is its very life-blood, its very essence, its immanent attribute.
The inherent power of a superior court to combat abuse of its processes derives from its fundamental responsibility to administer justice. Given the end that the power serves, it necessarily extends to categories of cases where the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. As early as 1883, in R v Burns, Higinbotham J, with whom Stawell CJ and Holroyd J agreed, noted:
… Every court of justice has an inherent power – a duty as well as a power – to take care that the machinery of justice is not abused in such a manner as to prevent justice being done, or allow a scandal to take place…
The High Court has similarly acknowledged this “duty”, noting that “every court is ‘in duty bound to protect itself’ against an abuse of its process”.
Thus, whilst it is axiomatic that all members of the community have access to the courts, that right is not absolute. This Court is clothed with all power necessary to ensure that it is able to fulfil its functions including the taking of appropriate steps to prevent the “persistent advancing of hopeless applications that are abusive and scurrilous and that unnecessarily take up the time of the court to the prejudice of the community in general, and other litigants in particular.” As Deane J indicated, the effective administration of justice is undermined where individuals abuse the processes of the Court by diverting resources from meritorious actions to repeated hopeless applications, devoid of any merit, that do not comply with the rules, and result in the unnecessary incursion of time and expense and the occasioning of unnecessary anxiety. Having said that, sight can never be lost of the fact that it is fundamental to the rule of law that all members of the community have access to the courts. I refer again to Deane J in Staats v United States of America:
One effect of that rule is to empower a Justice of the Court effectively to prevent the institution of proceedings which are vexatious in the sense that it can be seen that they cannot succeed. It is a power which must be exercised with great care and in only a clear case.
Care must be taken in the exercise of the power contained in Rule 53 and it may only be used in a clear case.
(footnotes omitted.)
I remain of this view.
I turn to consider the application of these powers to the Notice of Appeal filed on 19 August 2016.
Consideration
I commence with the observation that the appeal heard by the judge of this Court was confined to complaints relating to the making and existence of the Variation Order. Consistent with this all of the grounds of appeal in the Notice of Appeal before the appeal Judge were aimed in one way or another at the Variation Order or the process resulting in its making. The orders made by the Judge in disposing of the appeal set aside that order and restored the ancillary orders for access to M. The Care and Protection Order was not appealed against. Thus, SB succeeded, obviating the need to consider the interlocutory applications made.
No costs order was made.
The fact that SB succeeded and the Variation Order was set aside suggests, without more, that her appeal to the Full Court is moot and thus the Notice of Appeal filed 19 August 2016 is an abuse of process.
Meaning no disrespect to SB, who clearly has M’s best interests at heart, she does not appear to understand that an appeal is against an order and once such order is set aside, on whatever basis, it ceases to be of any force and effect.
Many of the submissions made by SB before me may be described as complaints regarding the supervision and execution of the Care and Protection Order, including the investigation of possibilities that M reside with certain family members who SB considered were better suited to caring for him. None of these complaints can be entertained on an appeal to the Full Court from the judgment of the single Judge. If there is any forum in which they may be aired, it is the Youth Court on an application under the Protection Act, or, possibly, as part of an application for judicial review.
It may also be said that SB appeared to consider that the powers of this Court on appeal were not circumscribed, but that relief in any respect could be granted if this Court, whether constituted by a single judge or otherwise, was of a different opinion to the judicial officers of the Youth Court or, indeed, the Minister. The appeal being instituted under s 22(1) of the Youth Court Act 1993 (SA), the appeal Judge was limited to the exercise of the powers contained in s 22(3) and then, only in relation to the judgment, within the meaning of s 22(1), appealed against.
I turn to the individual grounds of appeal.
Grounds one to four, seven and nine to 17, as reproduced above and contained in the Notice of Appeal filed 19 August 2016, may be considered together. Content and meaning to one side, they do not merit serious consideration by the Full Court. None of those grounds can have any consequence for the outcome of the appeal before the appeal Judge such that it is arguable that they might conceivably cause the Full Court to interfere with the orders made by the single Judge. None could result in any different order bearing in mind that the appeal before the single Judge was instituted only in relation to the Variation Order. They may be considered frivolous in that they do not merit serious consideration.
Ground five complains of an “Unresolved Constitutional Matter”. Indeed, in relation to the appeal before the appeal Judge the respondent issued notices as required by s 78B of the Judiciary Act 1903 (Cth). The appeal Judge summarised the constitutional argument as follows:[31]
The appellant argues that, as she was the recipient of social welfare payments on M’s behalf while he was in her custody, she was recognised as his guardian in the federal jurisdiction. Her contention appears to be that s 38(2)(a) of the Act is inconsistent with the A New Tax System (Family Assistance) Act 1999 (Cth).
[31] SB, MF v Minister for Education and Child Development [2016] SASC 116 at [56].
If fresh notices were required to be issued under s 78B in relation to the Minister’s application, that did not occur. In my view, it was unnecessary. In ACCC v CG Berbatis Holdings Pty Ltd French J, as he then was, said:[32]
Section 78B does not impose on the court a duty not to proceed pending the issue of a notice no matter how trivial, unarguable or concluded the constitutional point may be. If the asserted constitutional point is frivolous or vexatious or raised as an abuse of process, it will not attach to the matter in which it is raised the character of the matter arising under the Constitution or involving its interpretation: Nikolic v MGIC Ltd [1999] FCA 849; cf Australian Securities and Investments Commission v White (Fed C of A, Drummond J, 16 July 1998, unreported).
[32] (1999) 167 ALR 303 at [14]; Danielsen v Onesteel Manufacturing Pty Ltd (2009) 253 ALR 661.
I understand SB’s argument to be to the effect that because she was M’s guardian for the purposes of receiving benefits under the A New Tax System (Family Assistance) Act 1999 (Cth) she was the guardian of M for all legal purposes. Consequently, a law of a State that empowered a judge to attribute to her any different status altered, impaired or detracted from the intention of the Commonwealth law and was, under s 109 of the Constitution, inoperable. I do not think the argument has merit. More importantly, and even if I am wrong, it is an argument that, the Variation Order having been set aside, could only result in the setting aside of the Care and Protection Order and yet that order was not subject of the appeal before the single Judge. Further, and more to the point, before me SB made plain that she did not quibble with the Care and Protection Order.
In the circumstances it was unnecessary to stop the hearing of the Minister’s application pending the issue of s 78B Notices. Ground five is frivolous in the sense that it does not merit consideration. For the same reasons I would reject SB’s application, if it were necessary to consider that application (and assuming power to provide the relief sought exists), that the matter be removed in to the High Court.
Ground six complains that the appeal ought to have proceeded before the Full Court, as opposed to the single Judge. It is a challenge to the Judge’s determination that the appeal was against an interlocutory order and thus a matter that a single Judge could hear. I do not pause to consider whether the question is arguable. SB wants to pursue the argument but only in relation to the grounds of appeal dismissed and her interlocutory applications. She does not claim that the error infects the order setting aside the Variation Order. What she asks then is that the Full Court determine incidental and subsidiary matters arising in the course of pursuing the substantive relief sought despite that relief being obtained and without it being interfered with. In such circumstances the ground of appeal does not warrant serious consideration.

The eighth ground of appeal contends that “no s 38 investigation” has taken place. The respondent articulated the issue as follows:[33]
There is a problem because my grandson is an illegal prisoner under the Minister because Justice Prescott made an agreement with me and he explained to me that before [M] can be taken off my eldest son, there would have to be an investigation, and when I looked at the Act, he was correct, there has to be a s.38 investigation before the Minister has any power in relation to a child. She can't hold a child in care without a s.38 order.
[33] Transcript, 6 February 2017, p 6.
I take the respondent to contend that had there been a “section 38 investigation”, M would not have been taken from the care of her son and may have been placed in her care.[34] Further, certain unfortunate events in M’s life may also not have occurred had he been in the care of someone different.[35] I appreciate that these issues are of particular importance to the respondent due to the nature of her relationship with M.
[34] See for example Transcript, 6 February 2017, pp 28, 32-33.
[35] See for example Transcript, 6 February 2017, p 49.
The reference to s 38 is a reference to s 38 of the Protection Act. It is pursuant to the power contained in that section that the Youth Court may make a care and protection order. However, where an order is made under s 38(1)(d) placing the child under the guardianship of the Minister until the chid attains the age of 18, the powers vested in the Minister by s 51 are enlivened. Amongst other things, those powers permit the Minister to place the child in the care of a family member, an approved foster parent or other suitable person. My understanding is that it is in the exercise of the power contained in s 51 that the Minister has made the arrangements for M to reside and go to school in Queensland and which permits the Minister to explore the possibility of M going to his uncle.
The point is that the Care and Protection Order being in place, no further exercise of the power contained in s 38 is required as a matter of course, unless an application to vary the Care and Protection Order were made. Further, and in any event, any failure to comply with a condition precedent to the exercise of the power contained in s 38 can no longer be of any consequence if such failure is said to infect the Variation Order. That order has been set aside. If it is said that such failure has infected the Care and Protection Order, then that order was not the subject of appeal. Accordingly, the eighth ground of appeal does not warrant the attention of the Full Court.
For the reasons given above, in my view, the Notice of Appeal filed 19 August 2016 should be dismissed pursuant to the powers contained in rules 193(b), 295(1)(c) and 295(1)(h). In the event that I am wrong, I nonetheless consider that the said Notice of Appeal should be struck out under rule 117(1)(e) as an abuse of process.
I turn to the interlocutory applications and Notices of Appeal received subsequent to the Notice of Appeal filed 19 August 2016.
Subsequent Interlocutory Applications and Notices of Appeal
Pursuant to rule 193(b) I dismiss the following interlocutory applications for the reasons given:
i.The interlocutory application, filed 19 August 2016.[36] The application relates to the transfer that was intended under the Variation Order. That order has been set aside.
ii.The interlocutory application, filed 28 October 2016.[37] In this application SB seeks an order removing the matter into the High Court and ancillary orders in addition to orders regarding M’s future care. For the reasons given above the constitutional argument does not warrant consideration by the Full Court. The remaining orders sought are not relief that the Full Court is empowered to provide.
iii.The interlocutory application filed 25 November 2016.[38] This application concerns matters relevant to the conduct of the hearing before me. I gave SB every opportunity to raise all arguments in response to the Minister’s application and in support of her Notices of Appeal and interlocutory applications. Events have overtaken this application. To the extent that SB also seeks legal representation of her choice and requests it occur through Legal Aid, this Court has no power to assist.
iv.The interlocutory application filed 21 December 2016.[39] In this application SB seeks an order “to be allowed a verbal argument” and an order “to protect [M] from being returned to South Australia”. I do not understand SB ever to have been denied procedural fairness. As for the second order, it is not relief that can be granted on any appeal from the orders made by the appeal Judge.
v.The interlocutory application of 25 July 2017.[40] In this document the respondent, inter alia, seeks the setting down of “my review”, her August 2016 appeal to the Full Court and the interlocutory application of 19 June 2017 (being the application filed on 25 July 2017) and ancillary orders. In view of my order regarding the Notice of Appeal of 19 August 2016 and the absence of any power vested in this Court on appeal to conduct a review, this application does not warrant serious consideration and should be dismissed.
[36] SCCIV-16-1135 FDN 2.
[37] SCCIV-15-959 FDN 37.
[38] SCCIV-16-1135 FDN 14.
[39] SCCIV-15-959 FDN 39.
[40] SCCIV-16-1135 FDN 30.
With respect to the two additional Notices of Appeal:
i.The Notice of Appeal filed on 25 August 2017.[41] In this document the respondent, amongst other things, appeals against “[a]ll of the Orders of the Youth Court and the Supreme Court of 2015, 2016 and 2017, including the Order of Judge Roder in his judgment whereby he directs that FDN23 and FDN26 be struck from the file.”
Judge Roder ordered pursuant to rule 53 that FDN 23 and FDN 26 be struck from the file. In truth such order should have been that the Registrar reject FDNs 23 and 26. I have viewed FDNs 23 and 26. But for Judge Roder’s order, I would have exercised the power vested in this Court by rule 53(4) and directed that both documents be struck from the file.
The grounds of appeal articulated in support of this Notice of Appeal are many and traverse a vast array of topics including complaints as to the delay in providing these reasons, the refusal of the Court to accept a neuropsychological assessment of SB, the rejection of the constitutional argument and claims of this Court being in rebellion against the Parliament. My understanding of the grounds and orders sought is that they are focussed upon the Variation Order and the actions of the Minister and not the Care and Protection Order itself. All grounds remain focused on the Variation Order. As I have said, that order has been set aside and no longer exists. This Notice of Appeal does not merit serious consideration. It is frivolous and should be dismissed pursuant to rule 193(b).
ii.The Notice of Appeal received on 8 September 2017 received but not filed.[42] The orders sought are set out in the following terms:
(a)     Leave for the affidavit lodged against the order of Judge Roder in August 2017 to be filed;
(b)    Leave for Notice of Appeal lodged against the order of Judge Roder in August 2017 to be filed.
(c)    Leave for a date set for hearing of my appeal of August 2017.
The fate of this Notice of Appeal is inextricably linked to that filed on 25 August 2017. In view of my conclusion on the Notice of Appeal filed 25 August 2017, pursuant to rule 53(3) of the 2006 Rules I direct the Registrar to reject this Notice of Appeal.
[41] SCCIV-16-1135 FDN 33.
[42] This document was not accepted for filing as it post-dated Orders made by me which directed that no further documents were to be filed without the permission of a Judge of this Court.
For completeness I note that I have received a voluminous amount of correspondence from the respondent throughout the course of managing this matter. I have had regard to all of that material, including the submissions put by her and the concerns she addresses.
Conclusion
I order:
1.The application of the Minister filed 23 December 2016[43] as amended is allowed.
[43] SCCIV-16-1135 FDNs 6 and 12.
2.The Notice of Appeal filed 19 August 2016[44] is dismissed.
[44] SCCIV-16-1135 FDN 1.
3.The interlocutory application filed 19 August 2016[45] is dismissed
[45] SCCIV-16-1135 FDN 2.
4.The interlocutory application filed 28 October 2016[46] is dismissed.
[46] SCCIV-15-959 FDN 37.
5.The interlocutory application filed 25 November 2016[47] is dismissed.
[47] SCCIV-16-1135 FDN 14.
6.The interlocutory application filed 21 December 2016[48] is dismissed.
[48] SCCIV-15-959 FDN 39.
7.The interlocutory application filed 25 July 2017[49] is dismissed.
[49] SCCIV-16-1135 FDN 30.
8.The Notice of Appeal filed 25 August 2017[50] is dismissed.
[50] SCCIV-16-1135 FDN 33.
9.I direct the Registrar to reject the Notice of Appeal received on 8 September 2017.