SL v Chief Executive Officer of the Department for Child Protection and Family Support [No 2]
[2016] WASC 97
•31 MARCH 2016
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: SL -v- CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT [No 2] [2016] WASC 97
CORAM: PRITCHARD J
HEARD: 13 NOVEMBER 2015
DELIVERED : 31 MARCH 2016
FILE NO/S: SJA 1021 of 2015
BETWEEN: SL
Applicant
AND
CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT
First RespondentLHL
Second RespondentJCL
Third Respondent
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE T G SCHWASS
File No :CC 4121 of 2011
Catchwords:
Application for leave to appeal - Appeal against decision of the Children's Court - Where Magistrate decided he did not have power to make an order pursuant to s 133(2)(g) of the Children and Community Services Act 2004 (WA) - Whether Magistrate made decision as to existence of that power - Where Magistrate did make decision - Leave to appeal refused - Appeal dismissed
Legislation:
Children and Community Services Act 2004 (WA)
Criminal Appeals Act 2004 (WA)
Children's Court of Western Australia 1988 (WA)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Applicant: In person
First Respondent : Mr B D Nelson
Second Respondent : No appearance
Third Respondent : Ms M Wadsworth
Solicitors:
Applicant: In person
First Respondent : State Solicitor for Western Australia
Second Respondent : No appearance
Third Respondent : Bannerman Solicitors
Cases referred to in judgment:
Afkos Industries Pty Ltd v Pullinger Stewart (A Firm) [2001] WASCA 372
Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334
Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358
Commonwealth Bank of Australia v Jackson McDonald (A Firm) [2014] WASC 301
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088
Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250
Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226
In Re the Judiciary Act 1903 - 1920 and In Re the Navigation Act 1912 - 1920 (1921) 29 CLR 257
International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319
Ismail‑Zai v The State of Western Australia [2007] WASCA 150; (2007) 34 WAR 379
Lloyd v Faraone [1989] WAR 154
Meredith v CEO, Department for Child Protection and Family Support [2014] WASC 265
Minister for Aboriginal Affairs v Peko‑Wallsend (1986) 162 CLR 24
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 1; (2004) 134 FCR 85
NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470
Pettitt v Dunkley [1971] 1 NSWLR 376
Plaintiff M61/2010E v The Commonwealth [2010] HCA 41; (2010) 243 CLR 319
Public Service Board of New South Wales v Osmond (1986) 159 CLR 656
PVS v Chief Executive Officer, Department for Child Protection [No 2] [2011] WASC 318
Re National Parks and Nature Conservation Authority; Ex parte McGregor [2001] WASCA 368
Roe v D'Costa [2014] WASCA 118; (2014) 47 WAR 434
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
SL v Chief Executive Officer of the Department for Child Protection and Family Support [2015] WASC 495
Soulezmezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Strahan v Brennan [2014] WASC 190
Twist v Randwick Municipal Council (1976) 136 CLR 106
YPW v CEO, Department for Child Protection and Family Support [No 2] [2015] WASC 294
YPW v Chief Executive Officer, Department for Child Protection [2015] WASC 123
PRITCHARD J: Mr SL is the father of JCL who is a child who is subject to a temporary protection order made by the Children's Court in 2014, pursuant to s 28(2)(c) and s 28(2)(d) of the Children and Community Services Act 2004 (WA) (the CCS Act).[1] Ms LHL, the child's mother, is presently living overseas. As a consequence of the temporary protection order, the Chief Executive Officer of the Department for Child Protection and Family Support (the CEO) has exercised parental responsibility for JCL since the order was made and JCL has been living with foster carers since that time. The temporary protection order was made for a limited duration. The CEO subsequently made an application for an extension of the protection order (the Extension Application).[2] The Extension Application has yet to be heard. Mr SL is a party to the Extension Application (as are Ms LHL and JCL).
[1] An order of that kind is referred to in the Children and Community Services Act 2004 (WA) as a protection order (time limited).
[2] Section 56 of the CCS Act permits the CEO to make an application to the Court for the extension of a protection order (time limited).
Mr SL is dissatisfied with the manner in which the staff of the Department for Child Protection and Family Support have dealt with JCL's case and the manner in which JCL's case has been handled by the Children's Court itself. Mr SL has made a number of applications to the Children's Court in connection with the Extension Application.
The present appeal arises from one of those applications. On 11 February 2015, Mr SL made an application for an order that Ms Dinon, the solicitor acting for the first respondent, 'withdraw her involvement in this case immediately, failing which the Court order Ms Dinon be replaced and cease involvement in any manner with this case immediately' (the Recusal Application).[3] Mr SL sought that the Court make that order pursuant to s 133(2)(g) of the CCS Act.
[3] Book of materials, pages 169 ‑ 170.
In support of the Recusal Application, Mr SL filed an affidavit in which he expressed dissatisfaction with the manner in which Ms Dinon had acted in the proceedings. For present purposes, it is unnecessary to set out the allegations in that affidavit.
On 13 February 2015 the Recusal Application was dismissed by a magistrate in the Children's Court. Mr SL now seeks to appeal against that decision.[4] He requires leave to do so.[5]
[4] Pursuant to the Criminal Appeals Act 2004 (WA) s 7(1).
[5] Criminal Appeals Act 2004 (WA) s 9(1).
At the hearing of the appeal, the CEO appeared and opposed the grant of leave to appeal and the appeal itself. Ms LHL did not appear at the hearing of the appeal and the representative of JCL appeared but did not make submissions. For the reasons set out below, leave to appeal should be refused, and consequently the appeal is taken to have been dismissed.[6]
[6] Criminal Appeals Act 2004 (WA) s 9(3).
In these reasons for decision, I deal with the following matters:
1.The Recusal Application and the other matters before the learned Magistrate on 13 February 2015;
2.The learned Magistrate's reasons for decision;
3.The statutory framework for appeals against decisions of the Children's Court made pursuant to the CCS Act;
4.The amended ground of appeal; and
5.Why leave to appeal should be refused.
The Recusal Application and the other matters before the learned Magistrate on 13 February 2015
The hearing on 13 February 2015 appears to have been a mention or directions hearing listed for the purposes of fixing a hearing date for the Extension Application.[7] All of the parties to the Extension Application appeared in person, or were represented by counsel. Ms Dinon appeared on behalf of the CEO.
[7] ts 986 (13 February 2015).
At the beginning of the hearing, there was an exchange between the learned Magistrate, Ms Dinon, and Mr SL about the Recusal Application. The terms of that discussion are set out below at [21]. After hearing submissions from Ms Dinon and Mr SL, the learned Magistrate made his decision in respect of the Recusal Application. In doing so, he also dealt with two other (different) applications (dated 15 December 2014 and 30 January 2015) that he understood to be before him. As those applications are not the subject of the present appeal, it is unnecessary to say anything more about them.
The learned Magistrate's reasons for decision
In dismissing the Recusal Application, the learned Magistrate said:
Yes. Very well. Well, look, I've listened to you. I've read your applications of the 15th of December 2014, the 30th of January 2015 and the 11th of February and, quite frankly, I don't think I have the power to make any of the orders that you seek, and so those applications will be dismissed.[8]
The statutory framework for appeals against decisions of the Children's Court made pursuant to the CCS Act
[8] ts 989 (13 February 2015).
As I have already observed, the Recusal Application was made in reliance on s 133(2)(g) of the CCS Act. Section 133(1) of the CCS Act permits the Children's Court, at any time in the course of protection proceedings,[9] to make an 'interim order'. An 'interim order' is an order as to any one or more of the matters set out in s 133(2) of the CCS Act. Those matters include orders that the child the subject of the protection order is to be returned to, placed with, or remain with a parent of the child;[10] is to be taken into, or remain in, provisional protection and care;[11] is to be placed with a person approved by the Court;[12] that the child or any other party undergo counselling;[13] that a parent of the child, or any other person specified in the order who has been providing day‑to‑day care for the child, is to give the CEO personal possessions of the child;[14] or orders as to contact between the child and his or her parents, siblings, relatives or other persons who are significant in the child's life.[15] Finally, under s 133(2)(g), an interim order also includes an order as to 'any other matter that the Court considers appropriate'.
[9] The term 'protection proceedings' is defined in s 3 of the Children and Community Services Act 2004 (WA) to mean 'proceedings in respect of, or in connection with, a protection application or other application to the Court under pt 4 (excluding an application under ss 65, 73 or 126)'.
[10] Children and Community Services Act 2004 (WA) s 133(2)(a).
[11] Children and Community Services Act 2004 (WA) s 133(2)(b).
[12] Children and Community Services Act 2004 (WA) s 133(2)(c).
[13] Children and Community Services Act 2004 (WA) s 133(2)(d).
[14] Children and Community Services Act 2004 (WA) s 133(2)(e).
[15] Children and Community Services Act 2004 (WA) s 133(2)(f).
Section 42(1) of the Children's Court of Western Australia Act 1988 (WA) provides that where the Children's Court makes a decision on the hearing of an application under pt 4 or pt 5 of the CCS Act (which includes decisions in respect of interim orders under s 133(2)), that decision may be the subject of an appeal made in accordance with pt 2 of the Criminal Appeals Act 2004 (WA) (the CA Act). There may be some room for doubt as to whether the decision of the learned Magistrate in this case can be characterised as a decision of the kind referred to in s 42(1) of the Children's Court of Western Australia Act.[16] However, the parties viewed that provision as the source of this Court's power to deal with Mr SL's appeal, and consequently there were no submissions on that point. Given the conclusion I have reached in respect of the ground of appeal, it is unnecessary to resolve the issue and I am content to proceed (without determining the point) on the basis that the appeal is governed by pt 2 of the CA Act.
[16] Cf Meredith v CEO, Department for Child Protection and Family Support [2014] WASC 265.
Under pt 2 of the CA Act, a person aggrieved by a decision of a court of summary jurisdiction may appeal to this Court against the decision.[17] The grounds of appeal on which appeals may be brought include that the court of summary jurisdiction made an error of law or fact or both, acted without or in excess of jurisdiction, or that there has been a miscarriage of justice.[18] The leave of this Court is required for each ground of appeal[19] and the Court must not give leave to appeal on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding.[20] That means that the ground is required to have a rational and logical prospect of succeeding, in that it would not be irrational, fanciful or absurd to envisage it succeeding, or in effect that it has a real prospect of success.[21] On appeal, the Court has the power to make a variety of orders, including to dismiss or allow the appeal, and to set aside or vary the decision of the court below.[22]
[17] Criminal Appeals Act 2004 (WA) s 7(1).
[18] Criminal Appeals Act 2004 (WA) s 8(1).
[19] Criminal Appeals Act 2004 (WA) s 9(1); YPW v CEO, Department for Child Protection and Family Support [No 2] [2015] WASC 294 [39] (Mitchell J).
[20] Criminal Appeals Act 2004 (WA) s 9(2).
[21] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[22] Criminal Appeals Act 2004 (WA) s 14(1).
Accordingly, Mr SL requires leave to appeal before he can proceed with his appeal. In order to minimise cost and expense to the parties, I listed Mr SL's application for leave to appeal to be heard at the same time as the appeal itself.
The amended ground of appeal
Mr SL initially pursued four grounds of appeal in his Notice of Appeal. However, in the course of the hearing, Mr SL confirmed that he did not wish to rely on any of those grounds, but sought, and was granted, leave to amend his Notice of Appeal to pursue one ground, namely:
The learned Magistrate failed to establish whether he had the power to make the order sought by the applicant.
Following a rather lengthy exchange with Mr SL in the course of the hearing, in which I sought to ensure that the appeal ground or grounds accurately reflected the argument that Mr SL wished to ventilate, Mr SL unambiguously confirmed that he did not seek to have the Court determine whether the learned Magistrate actually had the power to make the order sought in the Recusal Application.[23] Instead, Mr SL sought to focus solely on the contention that the learned Magistrate failed to make a decision as to whether he had the power to make the order sought.
[23] Appeal ts 53 ‑ 54.
Why leave to appeal should be refused
In my view, the ground of appeal has no rational or logical prospect of succeeding, and consequently leave to appeal should be refused, for five reasons:
(i)The learned Magistrate determined that he had no power to make the order sought;
(ii)The language used by the learned Magistrate does not cast doubt on the conclusion that he determined that he had no power to make the order sought;
(iii)The brevity of the learned Magistrate's reasons does not support the conclusion that he failed to make a decision as to whether he had power to make the order sought;
(iv)The manner in which the learned Magistrate dealt with the Recusal Application does not support the conclusion that he failed to engage in the decision‑making process of determining whether he had power to make the order sought; and
(v)The appeal is now moot, as a result of a change in circumstances.
The learned Magistrate determined that he had no power to make the order sought
At the heart of Mr SL's ground of appeal is the question whether the learned Magistrate in fact made a decision in respect of the Recusal Application, and more particularly, a decision as to whether he had power to make an order of the kind sought in the Recusal Application. At one level, the ground of appeal can be shortly disposed of. The transcript quoted above at [10] makes clear that the learned Magistrate did make a decision as to whether he had the power to make the order sought. The decision the learned Magistrate made was a decision to dismiss the Recusal Application for the reason that the learned Magistrate had no power to make the order sought.
The language used by the learned Magistrate does not cast doubt on the conclusion that he determined that he had no power to make the order sought
Mr SL's contention that the learned Magistrate did not make a decision as to whether he had the power to make the order sought relied on the language used by the learned Magistrate, namely the learned Magistrate's observation that 'I don't think I have the power to make any of the orders that you seek'. Mr SL made the following submission:
[W]hat I am saying is the magistrate had an obligation before he came into court … to, I say, have knowledge of whether he had that power [to make the order]. Now, if he didn't have that [knowledge] then the appropriate steps were to adjourn to find out whether he had the power.
…
He's saying he doesn't know whether he has the power. He hasn't ascertained whether he has the power. He has come there, with respect … confused as to what was being heard that day.[24]
[24] Appeal ts 51.
Mr SL submitted that the learned Magistrate 'hasn't really made a decision'[25] and that the learned Magistrate was required to do so.[26] Mr SL also submitted:[27]
Does he say, 'I don't have the power'[?]. … [He says] 'I don't think.' That's different to 'I don't have the power.' He wasn't convinced he didn't have the power.
[25] Appeal ts 57.
[26] Appeal ts 63.
[27] Appeal ts 80.
Mr SL also pointed[28] to the following part of the transcript which he submitted demonstrated that the learned Magistrate did not know what the application was about:[29]
[28] Appeal ts 69.
[29] ts 987 (13 February 2015).
His Honour: … All right. So what the matter is about is it's an application by you, [Mr SL], to - what are we - perhaps, Ms Dinon, you can help. What are we - what's the application we're dealing with?
Mr SL:I'm seeking that - - -
Ms Dinon:We ..., there's an application made by [Mr SL], a further application, one of several that's been made and, look, sir, I think, quite frankly, it's deficient on many levels and my application would be to have it dismissed and struck off the actual record.
His Honour: All rights. Well, I will hear from [Mr SL]. [Mr SL], which application - there's a number of applications here. I'm not overly familiar with this file, but - - -
Mr SL:Sorry. It's quite - - -
His Honour: - - - on the top of the file, there's an application - - -
Mr SL:Yes.
His Honour: - - - that Ms Dinon withdraws, and some reason you have for that?
Mr SL:Yes.
Mr SL's contention was that this exchange, together with the learned Magistrate's remark that 'I don't think I have the power to make any of the orders that you seek' indicated that he did not actually form a view as to whether he had the power to make an order of the kind sought pursuant to s 133(2)(g) of the CCS Act, and simply dismissed the Recusal Application without determining that issue.
I am not persuaded that the language used by the learned Magistrate ‑ that is, his remark that he did not think he had the power to make the orders ‑ can be construed as a statement that he did not actually know the extent of his power, or as a statement of a failure to make a decision on his part. That remark, made in the course of his ex tempore determination, should be understood as simply a less formal way of saying that he had formed the view that he did not have power to make the orders sought. That he had in fact formed that view (rather than that he did not know the answer to the question) is confirmed also by the fact that he proceeded to dismiss the Recusal Application, rather than to adjourn the Application to allow for further consideration of it, or for further submissions by the parties as to whether the Court had power to make the order sought.
For completeness, I note that Mr SL submitted that this Court should obtain the audio recording of the proceedings before the learned Magistrate, rather than simply relying on the transcript of those proceedings. Mr SL made clear that he did not contend that the typewritten transcript failed to accurately reflect what was said.[30] Rather, he submitted that the transcript did not convey the manner in which the learned Magistrate made the observations set out at [21] above. He submitted:
[I]t was more like … you know, 'I - what am I doing here?' You know? 'I don't know what I'm doing'. So it's not quite 'I dismiss'. … I don't think the learned Magistrate had thought it through.[31]
[30] Appeal ts 87.
[31] Appeal ts 63 ‑ 64.
I am not persuaded that it is necessary to listen to the audio recording of the hearing in the Children's Court in this case (assuming for the moment that it could be located). Magistrates in the Magistrates Court and the Children's Court are not infrequently called upon to deal with numerous matters in a day, often with little preparation time, and they do so by quickly identifying the matters in issue, and by applying their knowledge of the law relevant to matters within the jurisdiction of the court. Even if the learned Magistrate's questions to counsel are read as conveying an initial unfamiliarity with the Recusal Application, there is no reason to doubt that, by the time the learned Magistrate made his decision, having heard Mr SL's submissions, he understood the basis for the Recusal Application, the order sought, and the source of power said to support the making of that order.
The brevity of the learned Magistrate's reasons does not support the conclusion that he failed to determine whether he had power to make the order sought
The learned Magistrate's reasons for decision were very brief indeed. He dismissed the Recusal Application because he decided he did not have the power to make the order sought. Part of Mr SL's misapprehension about whether the learned Magistrate actually made a decision may be attributable to the brevity of those reasons.[32] However, the brevity of those reasons does not support the conclusion that the learned Magistrate failed to make a decision as to whether he had power to make the order Mr SL sought. Given the potential misapprehension about what was required, it is appropriate to make three brief observations about the requirement on the learned Magistrate to give reasons for his decision.
[32] See Appeal ts 66; Appellant's further written submissions, dated 27 November 2015.
First, unlike the Magistrates Court,[33] there does not appear to be any statutory obligation on the Children's Court to publish reasons for its decisions. That is not entirely surprising given the nature of the work it does, and the requirements for confidentiality which apply in respect of much of that work.[34] However, the absence of a statutory requirement to give reasons does not mean that reasons are not required at all. The giving of reasons is a normal incident of the judicial process.[35] In addition, at common law, a court is required to give reasons in respect of those of its decisions which are subject to a right of appeal.[36] The reason for that requirement is that in the absence of reasons, the right of appeal may be frustrated in that the appellate court may not be able to determine whether or not the decision was based on an error of law.[37] The fact that decisions under pt 4 and pt 5 of the CCS Act are subject to a right of appeal to this Court supports the conclusion that the learned Magistrate was required to give reasons for his decision to dismiss the Recusal Application.
[33] Magistrates Court Act 2004 (WA) s 31.
[34] See, eg, pt 10 of the Children and Community Services Act 2004 (WA).
[35] Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 [26] (the Court) and the cases cited therein.
[36] Public Service Board of New South Wales v Osmond (1986) 159 CLR 656, 666 (Gibbs J).
[37] Pettitt v Dunkley [1971] 1 NSWLR 376, 382 (Asprey JA), 388 (Moffitt JA).
Secondly, while a court's failure to give reasons, when they are required, may constitute an error of law,[38] inadequacy of reasons does not necessarily amount to an appellable error. An appeal court will only intervene when no reasons were given when they were required, or when the inadequacy is such as to give rise to a miscarriage of justice.[39]
[38] Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250, 260; Pettitt v Dunkley [1971] 1 NSWLR 376, 382 (Asprey JA).
[39] Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 [29] (the Court).
Thirdly, the fact that reasons are required does not mean that lengthy or elaborate reasons must be given in every case.[40] The extent of the reasons required will depend on the circumstances. The Children's Court, like the Magistrates Court, is a busy court which must deal with the cases before it as expeditiously and efficiently as is possible, and with a degree of informality appropriate to that objective.[41] In addition, given that children are the subject of its criminal jurisdiction, and the object of its civil jurisdiction, it is obviously desirable that the decisions of the Children's Court are expressed as simply and succinctly as is appropriate in the circumstances, so that the Court's decisions can be more readily understood by all those affected by those decisions. In that context, appeal courts should not scrutinise the reasons for decision given by magistrates in the Children's Court with an eye finely attuned to the identification of error, and errors should not be inferred from mere infelicities of language.[42] The nature of the issue or application a court is resolving will also impact on the extent of the reasons required. By way of example, extensive reasons will not be required for the dismissal of an application which is nonsense, or which on its face is patently hopeless. In contrast, a decision made after a trial will ordinarily require findings to be made in respect of the evidence as to facts in dispute, and an explanation given of how the application of relevant legal principles to those facts led to the decision. Where reasons are required in order to facilitate the exercise of a right of appeal, it will suffice if the reasons of the court disclose its reasoning process to such an extent as to enable the litigant and the appellate court to consider and determine whether or not the judgment is erroneous.[43]
[40] Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 [28] (the Court); see also Soulezmezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 259 (Kirby P), 280 (McHugh JA). See also the discussion in Hon Justice M Kirby 'Reasons for Judgment: "Always Permissible, Usually Desirable and Often Obligatory"' (1994) 12 Aust Bar Review 121; and Kirby M, 'Ex Tempore Judgments - Reasons on the Run' (1995) 25 Western Australian Law Review 213.
[41] Cf Strahan v Brennan [2014] WASC 190 [90] (Martin CJ).
[42] Cf eg, Strahan v Brennan [2014] WASC 190 [90] (Martin CJ).
[43] Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 [27] (the Court); Lloyd v Faraone [1989] WAR 154, 163 (Malcolm CJ); Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226, 237 [31] (Pidgeon J).
In the present case, as the adequacy of the reasons given was not a ground of appeal, it is unnecessary to determine whether the learned Magistrate's reasons gave rise to an appellable error. It suffices to say that the reason given by the learned Magistrate for dismissing the Recusal Application was clear: he did not consider that he had the power to make the order sought. The Recusal Application relied on s 133(2)(g) of the CCS Act. Although that provision contains a wide and flexible power,[44] it can be inferred that the learned Magistrate did not consider that that power extended so far as to permit the Court to make the order sought by Mr SL, and that he did not consider that in the circumstances there existed any other power which would have permitted the making of such an order.[45]
The manner in which the learned Magistrate dealt with the Recusal Application does not support the conclusion that he failed to engage in the decision‑making process of determining whether he had power to make the order sought
[44] YPW v Chief Executive Officer, Department for Child Protection [2015] WASC 123 [229] (Mitchell J).
[45] In contrast, the Supreme Court has an inherent power to restrain a legal practitioner from acting in proceedings before it (although its jurisdiction to intervene is exceptional and should be exercised with circumspection and caution), for example, to prevent the erosion of public confidence in the administration of justice if a legal practitioner were to act despite having a conflict of interest, or to prevent a prosecutor from acting in an exceptional case where his or her ability to conduct the case fairly had been called into question, thus casting doubt on whether the accused person could receive a fair trial: see the discussion in Ismail‑Zai v The State of Western Australia [2007] WASCA 150; (2007) 34 WAR 379 [30] ‑ [40] (Steytler P), [52] ‑ [53] (Wheeler JA); see also Afkos Industries Pty Ltd v Pullinger Stewart (A Firm) [2001] WASCA 372 [28], [33] ‑ [34] (Murray J, Anderson & Steytler JJ agreeing); Commonwealth Bank of Australia v Jackson McDonald (A Firm) [2014] WASC 301 [21] ‑ [22] (Martin CJ).
At times during the course of Mr SL's submissions, it appeared that his contention was that the learned Magistrate did not engage in the mental exercise of considering the argument put before him, and the extent of his power to make an order under s 133(2)(g) of the CCS Act, and did not make a decision having regard to those matters. Although not put this way, the submission might have been understood as a contention that the learned Magistrate erred in law that he failed to afford natural justice to Mr SL by not actually or properly considering the Recusal Application. That contention is not expressly made in the ground of appeal, although of course some allowance must be made for the fact that Mr SL is not legally represented nor, apparently, legally trained. In the event that that was the contention that Mr SL was seeking to advance, I will deal with it, for the sake of completeness.
There is no doubt that the rules of natural justice encompass an obligation on a decision‑maker to give a person whose rights or interests may be affected by a decision the opportunity to be heard.[46] Mr SL was given the opportunity to make submissions, and in that sense he was heard.
[46] Twist v Randwick Municipal Council (1976) 136 CLR 106, 109 ‑ 110 (Barwick CJ). The requirement to afford a hearing is a fundamental characteristic of the exercise of judicial power: see Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334 [56] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne & Callinan JJ); see also International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 [141] (Heydon J).
However, the obligation to give a person the opportunity to be heard will not be satisfied merely by permitting that person to make a written or oral submission, if the decision‑maker gives no consideration to the submission. So, for example, where a decision‑maker deals with an application without bothering to read a written submission made by a party to that application (where that party is not given an opportunity to make an oral submission) there will be a denial of natural justice.[47] Similarly, a failure to respond to a substantial argument, which in effect amounts to the gravamen of a party's case, will constitute a failure to afford natural justice to that party.[48] (Depending on the circumstances, a failure of that kind might alternatively be characterised as a failure to exercise jurisdiction,[49] an error by the decision‑maker in directing itself as to the power being exercised,[50] or a failure to take into account a relevant consideration.[51]) If the way that a decision‑maker deals with a matter means that the decision‑maker is not able competently or properly to consider the question before it,[52] there may also be a denial of natural justice.[53] At an even more basic level, the requirement to afford a fair hearing requires the court or decision‑maker to be attentive to the evidence presented by the parties and the submissions which they make.[54]
[47] Re National Parks and Nature Conservation Authority; Ex parte McGregor [2001] WASCA 368 [129], [131] (Roberts‑Smith J), [3] (Malcolm CJ agreeing), [8] (Kennedy J agreeing).
[48] Plaintiff M61/2010E v The Commonwealth [2010] HCA 41; (2010) 243 CLR 319, 356 [90] (the Court); Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 [23] ‑ [27] (Gummow & Callinan JJ), [95] (Hayne J agreeing).
[49] Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 [23] ‑ [27] (Gummow & Callinan JJ), [95] (Hayne J agreeing), [86] ‑ [89] (Kirby J).
[50] Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 [74] ‑ [75], [81] (Kirby J).
[51] Minister for Aboriginal Affairs v Peko‑Wallsend (1986) 162 CLR 24, 39.
[52] For example, where inordinate delay between the hearing and the delivery of reasons casts doubt on the decision‑maker's ability to properly assess the credibility of the evidence given by witnesses at a hearing (NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470) or where the decision‑maker sleeps through the hearing: NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 1; (2004) 134 FCR 85, 99 (Finkelstein J); see also Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358, 380 ‑ 381 [71] (French CJ).
[53] NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470 [9] ‑ [10] (Gleeson CJ), [85], [106] (Kirby J), [168], [172] (Callinan & Heydon JJ) but cf at [55] (Gummow J), [132], [134], [136] (Hayne J).
[54] However, a 'margin of appreciation for human limitations' is required, so that it cannot be said that any minor distraction, inattention, sign of fatigue or even momentary sleepiness would constitute a failure to afford a fair hearing: see Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358, 380 ‑ 381 [71] ‑ [72] (French CJ).
In the present case, the learned Magistrate clearly identified the Application in question and the basis for it (namely the allegations Mr SL made about Ms Dinon's conduct), he heard submissions from both Mr SL and Ms Dinon, and he then made a decision to dismiss the Recusal Application and indicated the basis for that decision. There is no basis for concluding that the learned Magistrate failed to give Mr SL a fair hearing on the Recusal Application.
The appeal is now moot, as a result of a change in circumstances
Counsel for the CEO submitted that a change in the circumstances of the case meant that the appeal no longer had any utility. The CEO relied on an affidavit sworn by Mr Max Andrew Lewington, the Practice Director of the Legal Services Division of the Department for Child Protection and Family Support.[55] Mr Lewington deposed that for personal reasons unrelated to this case, Ms Dinon is no longer acting as counsel for the CEO in the proceedings in the Children's Court, and does not intend to have any further involvement in those proceedings.
[55] My reasons for permitting the CEO to rely upon that affidavit were set out on a previous occasion: SL v Chief Executive Officer of the Department for Child Protection and Family Support [2015] WASC 495.
The effect of that change in factual circumstances is that the appeal is now moot, and any decision by the Court on the appeal could not have any practical effect. Its decision in that sense would amount to an advisory opinion, which is antithetical to the exercise of judicial power.[56] Considerations of that kind normally militate against the exercise of appellate jurisdiction.[57] In my view, that consideration also militates against the grant of leave to appeal.
No miscarriage of justice in the circumstances?
[56] In Re the Judiciary Act 1903 - 1920 and In Re the Navigation Act 1912 - 1920 (1921) 29 CLR 257, 267 (Knox CJ, Gavan Duffy, Powers, Rich & Starke JJ).
[57] Roe v D'Costa [2014] WASCA 118; (2014) 47 WAR 434 [15] (Mazza JA, McLure P & Buss JA agreeing).
For the sake of completeness, I should mention one further matter. Counsel for the CEO submitted that even if leave to appeal were granted, and an error by the learned Magistrate could be shown, the appeal should be dismissed on the basis that the change in circumstances concerning Ms Dinon's involvement meant that no substantial miscarriage of justice had occurred.[58] The submission relied on the application of s 14(2) of the CA Act to appeals against decisions under pt 4 or pt 5 of the CCS Act. In PVS v Chief Executive Officer, Department for Child Protection [No 2] Murray J noted that s 14(2) of the CA Act applied in appeals of the present kind, but it was not necessary in that case to give the application of that subsection any detailed consideration.[59] Given my conclusion that leave to appeal should be refused, it is unnecessary to deal with this submission, and I express no concluded view as to whether, and how, s 14(2) applies to appeals in respect of decisions made under pt 4 or pt 5 of the CCS Act.
[58] Cf Criminal Appeals Act 2004 (WA) s 14(2).
[59] PVS v Chief Executive Officer, Department for Child Protection [No 2] [2011] WASC 318 [59] (Murray J).