SH v Chief Executive Officer of Department of Communities - [2019] WASCA 31

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   SH -v- CHIEF EXECUTIVE OFFICER OF DEPARTMENT OF COMMUNITIES [2019] WASCA 31
CORAM:   QUINLAN CJ
MITCHELL JA
PRITCHARD JA

HEARD:   6 FEBRUARY 2019
DELIVERED          :   18 FEBRUARY 2019
FILE NO/S:   CACV 35 of 2018
BETWEEN:   SH
Appellant
AND
CHIEF EXECUTIVE OFFICER OF DEPARTMENT OF COMMUNITIES
Respondent

ON APPEAL FROM:
Jurisdiction              :   STATE ADMINISTRATIVE TRIBUNAL
Coram:   DEPUTY PRESIDENT SHARP
File Number             :   CCS 11 of 2017

Catchwords:

Administrative law - Whether leave to appeal from decision of Tribunal should be granted - Whether Tribunal was correct to dismiss appellant's application 'for want of jurisdiction' - Care plan had been superseded at the time of Tribunal's decision - Any error regarding want of jurisdiction immaterial to Tribunal's dismissal of application - Alleged denial of procedural fairness and apprehended bias - Where no substantial injustice imposed on appellant if decision of Tribunal remains undisturbed - Where best interests of child served by refusal of leave to appeal - Where Tribunal's decision not attended by sufficient doubt to justify the grant of leave to appeal - Leave to appeal refused

Legislation:

Children and Community Services Act 2004 (WA), s 89, s 90, s 91, s 93, s 94
State Administrative Tribunal Act 2004 (WA), s 13, s 27, s 29, s 47, s 105

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In Person
Respondent	:	Ms C J Thatcher SC

Solicitors:

Appellant	:	In Person
Respondent	:	State Solicitor's Office

Case(s) referred to in decision(s):

Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338
DH & SH and Department for Child Protection [2014] WASAT 151
DH and Department for Child Protection [2011] WASAT 146
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
K and CEO of the Department of Child Protection [2008] WASAT 92
Legal Profession Complaints Committee v Rayney [2017] WASCA 78; (2017) 51 WAR 142
LS v Mental Health Review Board [2013] WASCA 128
Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83; (2018) 232 LGERA 331
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Plaintiff M174/2016 v Minister for Immigration [2018] HCA 16; (2018) 92 ALJR 48
Rizeq v The State of Western Australia [2017] HCA 23; [2017] 262 CLR 1
Scaffidi v Chief Executive Officer, Department of Local Government and Communities [2017] WASCA 222; (2017) 52 WAR 368
Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331
SH and Executive Officer of the State Administrative Tribunal [2008] WASAT 192
Stead v State Government Insurance Commission (1981) 161 CLR 141

JUDGMENT OF THE COURT:

Introduction

The appellant seeks to appeal against the decision of the State Administrative Tribunal of 13 March 2018 dismissing an application filed by him on 13 December 2017 (application). The application was 'dismissed for want of jurisdiction' (Tribunal's decision).
In the application, the appellant sought a review of a decision of the respondent (CEO) of 27 November 2017 to confirm a care planning decision made in relation to his granddaughter, C (CEO's Decision).
Under the State Administrative Tribunal Act 2004 (WA) (SAT Act), the appellant may only appeal against the decision of the Tribunal if this court gives leave to appeal. An appeal may only be brought on a question of law.[1] The appellant advances a number of grounds of appeal, but the primary question of law raised by the appeal is whether the Tribunal erred in its conclusion that it had no jurisdiction to deal with the application.
[1] SAT Act s 105(1) and (2).
For the reasons set out below, the Tribunal erred in law to the extent that it concluded that it had no jurisdiction to deal with the application. None of the other grounds of appeal have merit. However, leave to appeal should be refused because the correctness of the Tribunal's decision to dismiss the application is not attended by sufficient doubt to justify the grant of leave to appeal, and no substantial injustice will be occasioned to the appellant if leave to appeal is refused.

The factual and procedural history of the application

C is a child who is subject to a protection order (until 18) made by the Children's Court of Western Australia under pt 4 div 3 of the Children and Community Services Act 2004 (WA) (CCS Act).[2]
[2] A 'protection order (until 18)' is an order giving the CEO parental responsibility for a child until the child reaches 18 years of age: CCS Act s 57.
C is currently 14 years of age. She has been in care since she was two years of age. Over the years, there have been many applications by the appellant, and his son DH (C's father), for reviews of the care planning decisions made in relation to the child.[3] Those reviews have concerned, inter alia, whether the appellant should have unsupervised contact with C.
[3] Including SH and Executive Officer of the State Administrative Tribunal [2008] WASAT 192; DH and Department for Child Protection [2011] WASAT 146; DH & SH and Department for Child Protection [2014] WASAT 151.
The relevant care planning decision challenged by the appellant in this case related to the supervision of contact between C and her extended family members. That decision was set out in C's care plan, as modified after a review on 4 April 2017 (2017 care planning decision). The 2017 care planning decision provided:[4]
[DH] will continue to be responsible for appropriate supervision of [C's] contact with her extended family members. Supervision of contact is a non-negotiable, the Department expects [DH] to comply with the previously developed expectations around 'supervision' as well as comply with the safety rules that are put in place particularly around [the appellant] not being present in the house during the night.
…
[DH] will continue to make arrangements for other relatives to have contact with [C] during the time that he has [C] such as [the appellant]. [DH] will continue to supervise the contact as per the previously agreed 'supervision' expectations and will ensure that [the appellant] is not present for any sleepover contact [DH] has with [C].
[4] Paragraphs 1.3.2 and 5.3.3 of the modified plan (Green AB 38, 45).
On 6 June 2017, the appellant applied for a review by the CEO of the 2017 care planning decision (internal review). That internal review required a consideration of the 2017 care planning decision by a Care Plan Review Panel (CPRP), which would then make a recommendation to the CEO. After some delay, a hearing by the CPRP took place on 3 October 2017. It appears that DH attended that hearing but the appellant did not. The report of the CPRP, dated 26 October 2017, recommended that the paragraphs of C's care plan quoted above 'be upheld'.
In the CEO's Decision, which was set out in a letter to DH dated 27 November 2017, the CEO advised that he agreed that 'the decision concerning the points under review as set out in the Care Plan be upheld for the reasons outlined by the [CPRP]'.
The appellant then filed the application on 13 December 2017. The decision sought by the appellant in the review of the CEO's Decision was:[5]
That all restrictions upon contact arrangements to be removed from Care Plan and that all contact arrangements be at the discretion of the father [DH]. In particular the restriction upon overnight contact by [C] requiring the father [presumably meaning the appellant] not to be present to be removed.
[5] Green AB 37.
It is apparent, from the earlier proceedings before the Tribunal, that the orders sought by the appellant are in substance the same as those sought by him in relation to earlier care planning decisions.
On 1 March 2018, prior to any substantive hearing of the application, the CEO modified the care plan for C, apparently as a consequence of a mediation involving DH. The 2018 modification of C's care plan set out the following care planning decision in relation to contact with extended family members:[6]
[DH] will continue to be responsible for appropriate supervision of [C's] contact with her extended family members. Supervision of contact is a non-negotiable, the Department expects [DH] to keep [C] within earshot and eyesight at all times save when she is alone in the bathroom or alone in her bedroom at night.
…
[DH] will continue to supervise all of [C's] contact with her extended family and friends as agreed. This will entail [C] remaining in eyesight and earshot of [DH] at all times, except when she is in the bathroom or in her room alone at night time.
(2018 care planning decision).
[6] Paragraphs 1.3.2 and 5.3.2 of the modified plan (Green AB 24, 30).
The Tribunal listed the application for a hearing on 13 March 2018, apparently to consider what course should be followed in respect of the application, in light of the 2018 care planning decision.
The proceedings before the Tribunal proceeded by way of a discussion between the Deputy President and the parties. At the conclusion of the hearing, the Deputy President indicated that the decision of the Tribunal was that the application 'is dismissed for want of jurisdiction'.[7]
[7] Primary ts 29.
The Tribunal did not give formal reasons for its decision. (On appeal to this court, the appellant does not complain of an absence of reasons, or inadequate reasons.) It is apparent from the transcript of the Deputy President's discussion with the parties that the Tribunal dismissed the application on the basis that it could not continue with the review of the CEO's Decision in circumstances where the 2017 care planning decision which the CEO had confirmed had been superseded by the 2018 care planning decision.[8] It may be inferred that the Tribunal considered that it could not ignore the 2018 modification of C's care plan, given that the 2018 care planning decision was substantially different from the 2017 care planning decision.[9]
[8] Primary ts 24 - 25.
[9] Primary ts 10, 12, 27.

Legislative context

In order to understand the context of this decision, some brief reference to the relevant provisions of the CCS Act is necessary.
Part 4, div 5 of the CCS Act makes provision generally for children in the CEO's care.

Pt 4, div 5, subdiv 3 - Care plans

Subdivision 3 makes provision in relation to care plans. A 'care plan' means a written plan that:[10]
(a) identifies the needs of the child; and
(b)outlines steps or measures to be taken in order to address those needs; and
(c)sets out decisions about the care of the child including:
(i)decisions about placement arrangements; and
(iia)secure care decisions referred to in section 88G; and
(ii)decisions about contact between the child and a parent, sibling or other relative of the child or any other person who is significant in the child's life.
[10] CCS Act s 89(1).
As soon as practicable after a child first comes into the CEO's care, the CEO must prepare and implement a care plan for the child.[11]
[11] CCS Act s 89(2).
Subject to a presently immaterial exception, the CEO may modify a care plan at any time if the CEO considers it appropriate to do so.[12]
[12] CCS Act s 89(4).
In addition, the CEO must carry out a review of the operation and effectiveness of every care plan at regular intervals not exceeding 12 months.[13] In the course of the review, the CEO must have regard to any views expressed by the child, a parent of the child, any carer of the child and any other person considered by the CEO to have a direct and significant interest in the wellbeing of the child.[14]

Pt 4, div 5, subdiv 4 - Review of care planning decisions

[13] CCS Act s 90(1).

[14] CCS Act s 90(2).

Subdivision 4 provides for the review of certain care planning decisions.
A 'care planning decision' means a decision set out in a care plan for a child.[15]
[15] Section 91 of the CCS Act provides that a 'care planning decision', in relation to a child, 'means a decision set out in a care plan for the child but does not include a secure care decision referred to in section 88G.'
An application for an internal review of a care planning decision may be made by the child, a parent or carer of the child, or any other 'person considered by the CEO to have a direct and significant interest in the wellbeing of the child'. The application must be in writing and must be made within 14 days (or longer in special circumstances) after the applicant receives a care plan or modification of a care plan setting out the relevant care planning decision.[16]
[16] CCS Act s 93(1) - (3).
The CEO must then refer the internal review application to the CPRP[17] for its consideration and the CPRP must report to the CEO on its recommendations in respect of the internal review application.[18]
[17] The CPRP is established by the CEO under s 92 of the CCS Act. Its members are to be people with such experience, skills, attributes or qualifications as the CEO considers appropriate to enable them to effectively perform their review function. Membership of the CPRP may not include officers of the Department (as defined in s 3).
[18] CCS Act s 93(4) - (5).
The CEO must consider the CPRP's report and may confirm, vary or reverse the care planning decision; substitute another decision; or refer the matter back to the CPRP for further consideration and report.[19] The CEO must give the applicant written notice of his or her decision and the reasons for it.[20]

The Tribunal's jurisdiction

[19] CCS Act s 93(6).

[20] CCS Act s 93(7).

Under s 13(1) of the SAT Act:
A provision of an enabling Act that enables an application to be made to the Tribunal gives the Tribunal jurisdiction to deal with the matter concerned.
In the present case, the source of any jurisdiction the Tribunal had to deal with the application lay in s 94(1) of the CCS Act. That subsection provides that a person aggrieved by a decision made by the CEO under s 93(6)(a) or (b) of the CCS Act may apply to the Tribunal for review of that decision.
The condition for the existence of the Tribunal's jurisdiction, in the present case, is a 'decision made by the CEO under s 93(6)(a) or (b)' of the CCS Act. A reference to a 'decision' in the context of provision for administrative review of a 'decision' is ordinarily to 'a decision in fact made, regardless of whether or not it is a legally effective decision'.[21] Nothing in the CCS Act or SAT Act provides any basis for departing from that ordinary construction of the term 'decision' in this context. The CEO's Decision purported to confirm the 2017 care planning decision. The CEO's Decision under s 93(6)(a) of the CCS Act was capable of grounding the Tribunal's jurisdiction irrespective of whether the appellant had a right to apply for internal review of the 2018 care planning decision (which had been made by the time the application was heard in the SAT) or had exercised that right within the time required by s 93(3) of the CCS Act.
[21] Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338, 342, applied in Plaintiff M174/2016 v Minister for Immigration [2018] HCA 16; (2018) 92 ALJR 481 [39] - [40], [52].
We note that no submission was made to this court as to whether the appellant is '[a] person who is aggrieved' by the decision of the CEO, within the meaning of s 94(1) of the CCS Act. That would depend, at least in part, upon whether the appellant is a 'person considered by the CEO to have a direct and significant interest in the wellbeing of a child' within the meaning of s 93(1)(d). In the absence of any argument on this point, we have proceeded on the assumption that the appellant is a 'person who is aggrieved' by the CEO's Decision.
Under s 27(1) and s 27(2) of the SAT Act:
(1)The review of a reviewable decision is to be by way of a hearing de novo, and it is not confined to matters that were before the decision‑maker but may involve the consideration of new material whether or not it existed at the time the decision was made.
(2)The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.
Section 29(1) - s 29(3) of the SAT Act provides:
(1)The Tribunal has, when dealing with a matter in the exercise of its review jurisdiction, functions and discretions corresponding to those exercisable by the decision‑maker in making the reviewable decision.
(2)Subsection (1) does not limit the powers given by this Act or the enabling Act to the Tribunal.
(3)The Tribunal may:
(a)affirm the decision that is being reviewed; or
(b)vary the decision that is being reviewed; or
(c)set aside the decision that is being reviewed and:
(i)substitute its own decision; or
(ii)send the matter back to the decision‑maker for reconsideration in accordance with any directions or recommendations that the Tribunal considers appropriate,
and, in any case, may make any order the Tribunal considers appropriate.
By s 29(9) of the SAT Act:
To avoid doubt it is declared that this section and section 27 do not extend to requiring or enabling the Tribunal to deal with a matter that is different in essence from the matter that was before the decision‑maker.
In a case of the present kind, these provisions require the Tribunal, in a matter coming within its jurisdiction, to make the correct and preferable decision, at the time of the exercise of that jurisdiction, as to how the powers conferred on the CEO by s 93(6) of the CCS Act should be exercised. That is, the determination of the application on its merits would involve the Tribunal determining whether the correct and preferable decision was to confirm, vary or reverse the 2017 care planning decision, substitute another decision for the 2017 care planning decision or refer the matter back to the CPRP for further consideration and report.
However, in the exercise of its jurisdiction, the Tribunal may also decline to exercise its powers under s 29 of the SAT Act in certain circumstances. By way of example, s 47 of the SAT Act relevantly provides:
(1)This section applies if the Tribunal believes that a proceeding:
(a)is frivolous, vexatious, misconceived or lacking in substance; …
(2)If this section applies, the Tribunal may order that the proceeding be dismissed ….
(3)The Tribunal's powers to act under subsection (2) are exercisable only by a legally qualified member.
(4)The Tribunal may act under subsection (2) on the application of a party or on its own initiative.

The Tribunal's decision

As will be apparent from the above summary, it is a significant feature of this statutory scheme that the Tribunal's jurisdiction in relation to care planning decisions relates to decisions by the CEO, made under s 93(6)(a) or (b), following a review by a CPRP under s 93 of the CCS Act. There is no right of review by the Tribunal of a care planning decision made in the first instance by the CEO under s 89 or s 90 of the CCS Act. That is, the Tribunal's review jurisdiction exists only in relation to the CEO's decision on an internal review conducted under subdiv 4.
Of course, the relevant review is, for present purposes, of a decision to confirm a 'care planning decision' rather than the 'care plan' itself. It is implicit in the CCS Act that a care plan, and a care planning decision, will be implemented as soon as it is made.[22] Accordingly, a care planning decision which modifies a care plan will, for all intents and purposes, supersede the earlier care planning decision in relation to that care plan.
[22] cf CCS Act s 89(2), s 89(4), s 89(6), s 93(8).
However, nothing in the CCS Act or SAT Act provides that the Tribunal's jurisdiction to review a decision of the CEO under s 93(6)(a) or (b) is extinguished when a further care plan is reviewed, or a subsequent care planning decision is made. For this reason, as the Tribunal has long recognised (correctly in our view), the fact that a new or modified care plan has been made following an annual review does not deprive the Tribunal of jurisdiction to review a care planning decision reflected in any earlier plan.[23] However, as we discuss below, in a case where a subsequent care planning decision has been made, the Tribunal may, in some circumstances, decide not to exercise its powers on review.
[23] K and CEO of the Department of Child Protection [2008] WASAT 92 [30], [37], [38].

In the present case, it is clear that the 2017 care planning decision was the subject of an internal review under pt 4, div 5 subdiv 4 of the CCS Act. It is that review that led to the CEO's Decision which was the subject of the application.
Conversely, it is also clear that at the time of the Tribunal's decision the 2018 care planning decision had not been the subject of an internal review under pt 4, div 5 subdiv 4 of the CCS Act. Accordingly, there was no decision made under s 93(6) of the CCS Act in relation to the 2018 care planning decision.
It was the differences between the 2017 care planning decision and the 2018 care planning decision that led the Tribunal to dismiss the application.
In that regard, the Tribunal recognised that it would still be open for it to determine the application on its merits, and that there may be utility in doing so, if the relevant care planning decisions set out in the 2017 and 2018 modifications of C's care plan were substantially the same. However, it is apparent from the transcript of the proceedings before the Tribunal that the Tribunal concluded that the 2018 care planning decision was a substantial change from the 2017 care planning decision.
That being the case, the preferable course was for an application to be made for a review, by the Tribunal, of the 2018 care planning decision. However, that decision had not been the subject of an internal review and a decision by the CEO under s 93(6) of the CCS Act. For that reason, the Tribunal concluded, it was necessary for the 'new' care planning decision to go through the process of internal review before the jurisdiction of the Tribunal was invoked.
In that regard, the Deputy President of the Tribunal, in response to the appellant's statement to the effect that the respondent ought not be able to defeat the purposes of the Tribunal by making minor changes to a care plan, said:[24]
I would agree entirely with what you're saying, [SH], in that, if it were a minor decision I would regard it as the same decision and probably the CEO would regard it as the same decision and say, 'Get on with it.' Where we differ, and where I don't think we're creating any problems for the future, is simply that the idea of – you being in the house during overnight contact was a big, big issue for the department for a very long time. And the fact that they've conceded on that and in effect given [in] to [DH] what [DH] wants …
[24] Primary ts 28 - 29.
It is clear from the proceedings before the Tribunal that it considered that the appropriate course was for the appellant to seek an internal review of the 2018 care planning decision, following which, depending upon the outcome of that review, the appellant could apply to the Tribunal for a further review.[25] Indeed, the Tribunal expressed the view that it would be helpful for that process to be dealt with as quickly as possible.[26]
[25] Primary ts 25.
[26] Primary ts 28 - 29.
Accordingly, when making the order to dismiss the application, the Tribunal made clear its expectation that the appellant would 'go through the process that we've laid out this morning'.[27]
[27] Primary ts 29.
At the hearing of the appeal, the court was informed that the appellant did, in fact, seek an internal review of the 2018 care planning decision and that the CPRP was convened to consider that review. We will return to that matter at the end of these reasons.

Leave to appeal

The appellant seeks to appeal against the Tribunal's dismissal of his application for review of the CEO's Decision. In so doing, the appellant advances eight grounds of appeal, including allegations of a denial of procedural fairness, apprehended bias and other alleged errors of law.
It is appropriate, at this point, to recall the principles applicable to the grant of leave to appeal.
As we noted at the outset of these reasons, a party may only appeal against a decision of the Tribunal if the court gives leave to appeal.
As this court recognised in Paridis v Settlement Agents Supervisory Board,[28] the power to grant leave is conferred in general terms and leave should be granted if, in all of the circumstances, it is in the interests of justice that there should be a grant of leave.
[28] Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [16] (Buss JA, Wheeler & Pullin JJA agreeing).
While the ultimate issue is whether the grant of leave is in the interests of justice, Buss JA in Paridis stated that, in considering whether to grant leave, regard should be had to the guidelines articulated by the court in Secretary to the Department of Premier and Cabinet v Hulls.[29] In Hulls, Phillips JA said:[30]
When leave is sought to appeal … it will be necessary for the applicant to identify a question of law which is relevant to the granting of the relief sought on appeal. The importance of the question, either generally or to the would‑be appellant in the particular case, will probably be relevant. The applicant must show that there is a real or significant argument to be put on that question of law at least to this extent: that there is sufficient doubt about it to justify the grant of leave. Moreover, it may have to be shown that to allow the error to go uncorrected would impose substantial injustice, although, where the order below is final, that injustice will often be more readily discernible.
[29] Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331.
[30] Hulls [16] (Phillips JA, Tadgell & Batt JJA agreeing). These principles were also applied in Legal Profession Complaints Committee v Rayney [2017] WASCA 78; (2017) 51 WAR 142 [87] - [88].
These guidelines are relevant. They are not, as Buss JA emphasised in Paridis, determinative. Whether leave is granted must depend upon the circumstances of each particular case. In this regard, the grant of leave should not be regarded as a perfunctory exercise. The legislative purpose in requiring the grant of leave is to reduce unnecessary appeals from decisions of the Tribunal.
In the present case, the ultimate question is whether the Tribunal made a material error of law in dismissing the application and whether a substantial injustice would be imposed on the appellant if the Tribunal's decision remains undisturbed.
Unless the Tribunal erred in dismissing the application, then absent some special circumstances, the interests of justice would not require that there be a grant of leave to appeal.

Did the Tribunal err in dismissing the application?

Fundamentally, the basis for the Tribunal's decision to dismiss the application was that it could not continue with the review of the CEO's Decision to confirm the 2017 care planning decision when that decision had been superseded by the substantially different 2018 care planning decision.
While acknowledging that it is a matter of degree, in our view, the Tribunal was correct to conclude that the 2018 care planning decision was substantially different from the 2017 care planning decision confirmed by the CEO's Decision. The prohibition on the appellant being present during C's overnight visits with DH was a matter of particular significance in the 2017 care planning decision. The appellant expressly sought an order that this restriction be removed.
The appellant's challenge to the requirement for supervision of contact generally could not realistically be separated from the change concerning overnight visits. It represented an incremental change to a state of affairs concerning supervision of contact that had been in place for many years. Indeed, the appellant had unsuccessfully challenged the general requirement for supervision on a number of earlier occasions.[31]
[31] See DH and Department for Child Protection [2011] WASAT 146; DH & SH and Department for Child Protection [2014] WASAT 151 at [74] - [100].
However, the 2018 care planning decision had not been the subject of an internal review under s 93 of the CCS Act. Undoubtedly, the Tribunal did not have jurisdiction to review that decision. In this sense, it may be said that there was a jurisdictional impediment to the exercise of the Tribunal's review function, in respect of the 2018 care planning decision.
Nevertheless, in our view, it is not correct to say that the application before the Tribunal was itself beyond jurisdiction.
'Jurisdiction', in its strict sense, simply refers to the 'authority to … hear and determine a matter' or the 'authority to adjudicate'.[32] The 'jurisdiction' (or 'authority to adjudicate') of the Tribunal in the present case arose under s 94(1) of the CCS Act by reason of the existence of the 'decision' under s 93(6), namely the CEO's Decision of 27 November 2017 to confirm the 2017 care planning decision.
[32] See, in the context of State and federal 'jurisdiction', Rizeq v The State of Western Australia [2017] HCA 23; [2017] 262 CLR 1 [8] (Kiefel CJ), [50], [53] - [54] (Bell, Gageler, Keane, Nettle & Gordon JJ).
The Tribunal had jurisdiction to review the CEO's Decision when the application was filed and the 2018 care planning decision did not deprive it of that jurisdiction.
In this regard, the position is similar to that concerning the review of an involuntary patient order under the Mental Health Act1996 (WA) in LS v Mental Health Review Board.[33] In LS, the Tribunal had dismissed, for want of jurisdiction, an application for review on the basis that the applicant was no longer an involuntary patient.
[33] LS v Mental Health Review Board [2013] WASCA 128.
In relation to the matter of jurisdiction, Murphy JA (Newnes JA agreeing), observed:
The Tribunal's powers under the SAT Act (including s 29) may only be used, relevantly, in connection with the exercise of the Tribunal's review jurisdiction. The Tribunal's task was to determine whether the Board's decision …, for the appellant to continue to be the subject of an involuntary patient order, was the correct and preferable decision to make at the time of the Tribunal's review. Thus, the nature of the Tribunal's task in the exercise of its review jurisdiction was to determine whether, as at the date of the Tribunal's review (or more precisely at the date of its determination), the involuntary patient order should continue to have effect. [132]
His Honour went on to note that the fact that the appellant had ceased to be an involuntary patient did not deprive the Tribunal of jurisdiction:
That does not mean, however, that the Tribunal lacked jurisdiction to deal with the appellant's application … Nor does it mean that the Tribunal's jurisdiction 'falls away'. Rather, given the nature of its review jurisdiction, the proper power available to be exercised within its jurisdiction was the power to dismiss the proceeding under s 47(1)(a) of the SAT Act on the basis that it was 'lacking in substance' …
If and to the extent that the Tribunal suggested that it lacked jurisdiction to deal with the application, I would respectfully differ. Nevertheless any error in that regard is immaterial, because in my view the Tribunal, in the exercise of its jurisdiction, properly exercised a power, which was available to it under s 47(1)(a), to dismiss the proceedings. [134] - [135]
Similarly, in the present case, the 2018 care planning decision did not mean that the Tribunal's jurisdiction to review the CEO's Decision to confirm the 2017 care planning decision 'fell away'. There was, relevantly, a 'decision' of the CEO to which the Tribunal's review jurisdiction extended. Whether the Tribunal should exercise that jurisdiction in light of the 2018 care planning decision was a different question.
In that regard, depending upon the particular circumstances, there may be cases in which the Tribunal might exercise its review jurisdiction, notwithstanding that there has been a subsequent, substantially different, care planning decision. The hypothetical example postulated by the appellant, of a case where a subsequent care planning decision is taken for the improper purpose of frustrating the Tribunal's review, might be such a case. This is because where an application for review is made, and the Tribunal has jurisdiction, it will ordinarily undertake a review in the exercise of that jurisdiction unless it determines, in the exercise of its powers under the SAT Act, that the application for review should be dismissed or struck out.
Accordingly, to the extent that it denied the existence of its authority to determine the application, the Tribunal may be said to have erred. In this respect, Senior Counsel for the respondent submitted that the Tribunal may have used the expression 'jurisdiction' in a less precise sense, namely as to whether there remained a matter of substance for the Tribunal to consider once the 2018 care planning decision had superseded the 2017 care planning decision.[34]
[34] Appeal ts 41. If this was the case, it would not be the first time a degree of imprecision has crept into the use of the word 'jurisdiction': see Harris v Caladine (1991) 172 CLR 84, 136 (Toohey J); Rizeq [55] (Bell, Gageler, Keane, Nettle & Gordon JJ).
Be that as it may, in our view, as was the case in LS, any error of the Tribunal in that regard was not material. It is established that only an error of law that affects the Tribunal's decision can be the subject of an appeal on a question of law, and that an immaterial error will not suffice. In determining the materiality of an error of law, it will be relevant to consider whether the result was inevitable or whether there is a reasonable possibility that the error could have had any impact on the reasoning process actually adopted by the Tribunal. What must be established is that the error is sufficiently material or operative to warrant the large step of setting aside the Tribunal's decision.[35]
[35] See Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83; (2018) 232 LGERA 331 [130] - [131].
In this case, the Tribunal's task was to determine whether, at the time of the review, the correct and preferable decision was to confirm, vary or reverse the 2017 care planning decision, substitute another decision for the 2017 care planning decision or refer the matter back to the CPRP for further consideration and report.
Once the 2017 care planning decision had been superseded by the 2018 care planning decision, and where the 2018 care planning decision was substantially different from the 2017 care planning decision confirmed by the CEO's Decision, there was, on the undisputed facts before the Tribunal, no longer any substance to the application for a review of the CEO's Decision.
The observations made by the Deputy President, at the hearing of the Tribunal on 13 March 2018, indicate that the Tribunal, in substance, had the belief that the 2017 care planning decision had been superseded by the substantially different 2018 care planning decision, and that there was therefore no utility in reviewing the CEO's Decision to confirm the 2017 care planning decision.[36] The Tribunal, in effect, concluded that the application should be dismissed because it was lacking in substance for that reason.
[36] See esp primary ts 24 - 25.
It was open to the Tribunal to form that belief and to dismiss the application on that basis, pursuant to s 47(1)(a) and (2) of the SAT Act. Given the circumstances then existing, it was, in our view, correct to do so.
Any error in the Tribunal's reference to 'want of jurisdiction' was immaterial (as in LS). Given the substantive conclusions which founded the Tribunal's decision to dismiss the application, there is no reasonable possibility that any error in referring to 'want of jurisdiction' could have had any impact on the ultimate decision to dismiss the application.
In that context, the Tribunal's expectation that the appellant would go through the required statutory process for internal review under the CCS Act, which included the consideration of the then current care planning decisions by the CPRP, was, in our view, a proper one. That expectation was one that could properly inform the Tribunal's decision as to whether there remained any substance to the application after the 2018 care planning decision had been made.
The CEO has the parental responsibility for C to the exclusion of any other person.[37] The preparation and review of care plans is an essential component of the manner in which the CEO is to discharge that parental responsibility.
[37] CCS Act s 57(2).
In that regard, the CCS Act provides a clear statutory process for the review of care plans. That process, as with all other functions and powers under the CCS Act, has as its paramount consideration 'the best interests of the child'.[38] The process also requires, in the case of an internal review under s 93, that the reviews be carried out by the CEO with the advice and recommendations of the CPRP.
[38] See CCS Act s 7.
The CPRP is an expert body. In relation to any particular care planning decision the subject of internal review, in our view, the CEO is not only obliged, but is entitled, to have the recommendations of the CPRP.
That process cannot, and should not, be circumvented by the Tribunal reviewing an earlier care planning decision that has been superseded by a substantially different decision. It was appropriate, therefore, for the Tribunal to expect the appellant to go through the required statutory process under the CCS Act, before conducting a review.
No doubt the Tribunal also expected that such a review would be completed in a short period of time.[39] Regrettably, that has not occurred. Nevertheless, given the circumstances existing at the time that it did so, in our view, the Tribunal was correct to dismiss the application and has not been shown to have made any material error of law in doing so. The correctness of the Tribunal's decision to dismiss the application for a review of the CEO's Decision to confirm the 2017 care planning decision is not attended by sufficient doubt to justify the grant of leave to appeal.
[39] Primary ts 28.

The grounds of appeal

Once this conclusion is reached, nothing in the appellant's grounds of appeal provides a basis for setting aside the Tribunal's decision. For this reason, it is not necessary to consider each of the grounds in detail, particularly those that relate to matters of procedure.
Nevertheless, it is appropriate to record the following matters in relation to the grounds.
A number of the grounds raise the issue of jurisdiction and, in particular, what the appellant identified as the failure of the Tribunal to follow the precedent set in other Tribunal hearings, where it had conducted a review of a care planning decision notwithstanding that a further modification of the care plan had been issued prior to the review being completed. In this respect, the appellant relied upon earlier proceedings in the Tribunal in relation to C's care plan in 2009 and 2011.[40]
[40] See Grounds 3 and 6.
As we have concluded above, insofar as it denied that it had 'jurisdiction' in relation to the application, the Tribunal may be said to be in error. To that extent, the appellant's submissions are correct. Nevertheless, for the reasons we have given, any such error was not material to the Tribunal's ultimate decision to dismiss the application in light of the changes reflected in the 2018 modifications to C's care plan. That decision is, properly characterised, a decision of the Tribunal as to the substance of the application that was made within its jurisdiction.
The assessment as to whether the application lacked substance was one to be made, in light of all of the circumstances then existing, including the nature of the care planning decisions and the nature and extent of the appellant's challenge to them. It was an assessment that involved matters of degree, which may well have resulted in a different result in different circumstances.
In that regard there was, in our view, no inconsistency between the approach of the Tribunal in this case, and the previous occasions on which the Tribunal had continued review proceedings, notwithstanding that a further modification of the care plan had been issued. As the transcript of the proceedings (including the passage reproduced at [44] above) reveals, the Tribunal recognised that assessing whether the proceedings should continue was a matter of degree and that the circumstances were different from those earlier proceedings before the Tribunal.

Other grounds complain of a failure by the Tribunal to accord procedural fairness to the appellant. In particular, the appellant contends that he was not given a fair opportunity to present his case to the Tribunal given the short notice he was given of the hearing and its limited duration. However, the appellant has not identified any submission or evidence which he could have, but did not, advance at the Tribunal hearing which might have affected the outcome. In these circumstances, if there was a failure to accord procedural fairness to the appellant (and we should not be taken to find that there was), it did not deprive the appellant of the possibility of a successful outcome.[41]
[41] See Stead v State Government Insurance Commission (1981) 161 CLR 141, 145, 147.
In oral submissions, the appellant contended that s 26 of the SAT Act precluded the CEO from varying the 2017 care planning decision, which could not be validly superseded by the 2018 care planning decision.[42] There is no merit in that submission. Section 26 prohibits a decision‑maker from varying or setting aside a decision which is under review. The 'decision' the subject of review in this case was the CEO's Decision to confirm, without any variation, the 2017 care planning decision. The 2018 care planning decision did not vary or set aside the CEO's Decision. Nothing in s 26 precludes the CEO from subsequently modifying C's care plan where he or she considers it appropriate to do so, as permitted by s 89(4) of the CCS Act, including on the regular reviews required by s 90(1) of the CCS Act. Even if s 26 of the SAT Act could be said to apply, the decision to modify C's care plan is one which would be permitted under s 26(c), which allows a variation, or setting aside and substitution, of a decision 'that is permitted by the enabling Act'.
[42] Appeal ts 61 - 63.
One further ground requires specific comment.
By ground 2, the appellant alleges that the conduct of the Deputy President was such as to give rise to a reasonable apprehension of bias on the part of the Deputy President. The appellant relied, in part, on statements from the Deputy President made in the course of exchanges with the appellant expressing his Honour's views as to the issues before him.
None of those exchanges, in our view, displayed prejudgment on the part of the Deputy President nor were they arguably such as to give rise to a reasonable apprehension of bias. As the High Court said in Johnson v Johnson:[43]
Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.
[43] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488, 493 [13] (Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ).
These remarks apply with equal, if not more, force in relation to proceedings before the Tribunal where a party is self-represented. In such circumstances, the expression of tentative views to which a party can respond may be part of ensuring that the party is given a fair hearing. The impartiality of the Tribunal is, of course, essential; but impartiality is not inconsistent with the clear articulation to the parties of the issues that the Tribunal must consider, and any provisional views the Tribunal may have on those issues.
There is no substance to ground 2.

Leave to appeal should be refused

For the above reasons, in our view, notwithstanding that it was not correct for the Tribunal to describe itself as being without jurisdiction, the correctness of the Tribunal's decision to dismiss the application is not attended by sufficient doubt to justify the grant of leave to appeal.
Nor are we satisfied that any substantial injustice will be occasioned to the appellant by leaving the Tribunal's decision undisturbed.
In this regard, the CEO’s Decision to confirm the 2017 care planning decision was superseded by the 2018 care planning decision. The appellant sought an internal review of the 2018 care planning decision and is able to apply for a further review by the Tribunal if dissatisfied with the outcome of that internal review.
The appellant will therefore have available to him a more appropriate avenue for review than a review of the CEO's confirmation of the 2017 care planning decision.
The most the appellant could reasonably hope to achieve by this appeal is to have the CEO's confirmation of the 2017 care planning decision set aside, and the application sent back to the Tribunal for reconsideration.[44] The practical outcome would be that the appellant would have the opportunity to contend before the Tribunal that he should now have unsupervised access to C. That opportunity would be subject to resolving the CEO's contention that the application is an abuse of process, by re-agitating the question of his unsupervised access to C absent a material change in circumstances. In the meantime, the 2018 care planning decision would continue to operate unless it were modified or substituted in the 2019 review of C's care plan.
[44] Section 105(9) of the SAT Act, as to which see Scaffidi v Chief Executive Officer, Department of Local Government and Communities [2017] WASCA 222; (2017) 52 WAR 368 [205].
If leave to appeal is refused, the appellant's position will not be substantially different. If the internal review of the 2018 care planning decision or the 2019 review of C's care plan do not result in unsupervised access, the appellant may seek a review in the Tribunal. He could then seek to contend before the Tribunal that he should now have unsupervised access to C. Refusal of leave to appeal would not deprive the appellant of any such opportunity.
It must be said, in this context, however, that the delay in conducting and completing that internal review has not been conducive to the orderly management and review of C's care plan.
While the appellant's application for internal review of the 2018 care planning decision was made promptly (within a week of the Tribunal's decision), the hearing by the CPRP was not completed until December 2018. This was well in excess of the standard timeframe of 30 days set out in the Standing Procedures for Case Review Panel.[45]
[45] Standing Procedures for Case Review Panel approved pursuant to s 95 of the CCS Act on 17 November 2008 (Standing Procedures), cl 29.
Similarly, the Standing Procedures provide that, subject to agreement for a longer period by the CEO or the relevant Executive Director, the CPRP must report its recommendations to the CEO within 21 working days of the hearing.[46] At the hearing of this appeal, that time had elapsed in relation to the review of the 2018 care planning decision and the CPRP was yet to provide its recommendations. Since the hearing, the court has been informed that the delegate of the CEO is currently considering the CPRP's report and recommendation in relation to the review of the 2018 care planning decision.[47]
[46] Standing Procedures, cl 47.
[47] Affidavit of Jacqueline Therese Tang affirmed 11 February 2019, par 7.
Delays of this kind, in our view, have the real potential to disrupt the proper care planning required by the CCS Act. Particularly given the statutory requirement that the care plan be reviewed at least every 12 months,[48] in our view the CCS Act evinces a legislative intention that reviews under pt 4, div 5, subdiv 4 of the Act will be carried out in a timely manner, and preferably as soon as possible within the 12 month currency of relevant care planning decisions. Delay in the review of a care plan, and parallel reviews of the same care plan are, by reason of the uncertainty they introduce into the life of the relevant child, undesirable.
[48] CCS Act s 90(1).
As matters stand, a further annual review of C's care plan is imminent. That review, and the resolution of the internal review of the 2018 modifications, are mandatory requirements of the CCS Act. Those reviews should include consideration of the operation and effectiveness of the 2018 care planning decision in relation to the supervision of C. It is in the best interests of C that any review of her care plan be based on the most up‑to‑date information available.
In our view, notwithstanding the unfortunate delays in relation to the internal review of the 2018 care planning decision, it would not be in the best interests of C for those reviews to be conducted in parallel with a review by the Tribunal of the CEO's confirmation of the 2017 care planning decision. As it is, there are already two parallel reviews underway that must be completed. A third review would only add an additional layer of complexity and uncertainty into C's life.
There is, accordingly, no substantial injustice caused by not setting aside the Tribunal's dismissal of the application and remitting the matter back to the Tribunal, thereby requiring it to revisit the CEO's confirmation of the 2017 care planning decision. The best interests of C are served by the refusal of leave to appeal.

Orders

For the above reasons, the following orders should be made in the appeal:
(1)Leave to appeal is refused.
(2)The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JS
Research Associate to the Honourable Chief Justice Quinlan
18 FEBRUARY 2019