SM v County Court of Victoria
[2017] VSC 440
•3 August 2017
| IN THE SUPREME COURT OF VICTORIA | Unrestricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2017 1820
| SM | Plaintiff |
| V | |
| COUNTY COURT OF VICTORIA & ORS | Defendants |
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JUDGE: | BONGIORNO JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 July 2017 |
DATE OF JUDGMENT: | 3 August 2017 |
CASE MAY BE CITED AS: | SM v County Court of Victoria & ors |
MEDIUM NEUTRAL CITATION: | [2017] VSC 440 |
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APPEAL – Appeal of order of the County Court striking out an appeal from the Family Division of the Children’s Court – Section 430D of the Children, Youth and Families Act 2005 (Vic) – Whether physical attendance of the appellant necessary upon hearing of an appeal against an order of the Children’s Court where legal representation is present – Appearance of counsel in the absence of the party sufficient – Matters of procedural fairness – Appeal allowed – Order of County Court set aside – Appeal remitted to County Court for determination.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr John Sutton | Orenstein Lawyers |
| For the First Defendant | No appearance | |
| For the Second Defendant | Mr S McGregor | Department of Health and Human Services |
| For the Third and Fourth Defendants | No appearance |
HIS HONOUR:
This application, commenced by Originating Motion, seeks to have an order of the County Court striking out an appeal from the Family Division of the Children’s Court set aside and the appeal remitted to the County Court to be determined according to law.
SM is 17 years of age. She was born on 11 October 1999. On 14 September 2016, a protection application was brought in respect of her in the Family Division of the Children’s Court of Victoria, which application resulted in her being made subject to an Interim Accommodation Order pursuant to the Children, Youth and Families Act 2005 (Vic) (the Act). The order placed her in “out of home care”.
On 10 October 2017, the Interim Order was replaced, by the Children’s Court, with a Care by Secretary Order (CBSO) pursuant to s 275 of the Act; the Court having determined that SM was in need of protection; one of the grounds upon which such an order might be made (s 274(a)).
On 2 November 2016, SM appealed the CBSO to the County Court pursuant to s 328 of the Act, the hearing of which appeal took place before her Honour Judge Hannan on 23 February and 6 March 2017. In the course of those hearings certain legal issues were debated, including the question of whether, having regard to SM’s then age (17 years) the County Court could, on the hearing of her appeal, as a matter of law, impose a CBSO on her.
Her Honour heard argument on this question and delivered an oral ruling to the effect that notwithstanding SM’s age the Court had jurisdiction to make such an order. At some later date she published a written ruling which explained her conclusion to that effect. In short, she held that s 275(3) of the Act overcame the definition of ‘child’ in s 3 of the Act which, on its face, might have been thought to have deprived the court of jurisdiction to impose a CBSO in the circumstances of this case.
The further hearing and completion of SM’s appeal was fixed for 20 April 2017 at 9.00am. On that date, the hearing before the County Court resumed some time shortly after 9.00am. SM was not present. Ms Raccanello, counsel for the Department, informed the Court that an employee of the Department had been in touch with SM, that she had ‘left her unit’ and would not be at court for some time. The judge commented that she would strike out the appeal. Counsel for the Department appeared to take up the judge’s comment and said that she would apply to have the appeal struck out. Counsel for SM, Mr Brown, in response to a question of the judge, opposed the expressed intention of Ms Raccanello, but was unable, at that stage, to say anything as to where SM was.
Without any further argument or discussion Judge Hannan said that she would postpone commencing the hearing until 10.00am but, if the appellant had not appeared by that time, she would strike out her appeal. Apart from Ms Raccanello applying to have the appeal struck out with a reference to ‘section 432’[1] there is no discussion or even reference in the transcript to the way in which a power to strike out might be exercised.
[1]Counsel’s reference to section 432 was either a mistake or a typographical error in the transcript: there is no section 432 in the Act.
Ms Raccanello told the judge that one of the witnesses she intended to call, a Ms Wiggins, had received information that SM had ‘left her unit’, that she was ‘somewhere out in Ashburton way’ and that ‘she wouldn’t be here for some time’. There was no information before the Court which would justify a conclusion that SM had not intended to appear and/or had intended to abandon her appeal. Nor was there any discussion as to the alternative to striking out an appeal provided by s 430D(1)(b) of the Act; namely the possibility of adjourning the appeal to enable SM further time to get to court.
As already noted, SM was represented in court by counsel, Mr Brown, who referred to ‘his instructions’. Further, there would appear to have been no reason why the hearing of SM’s appeal could not have re-commenced without SM being present. Ms Raccanello referred to two witnesses she intended to call, both of whom were present. They could have been examined and cross-examined and Mr Brown could have addressed the court. There may well have been no need for the appellant to be present.
Section 430D of the Act confers on the court seized of an appeal the power to strike out the appeal or adjourn ‘the proceeding’ on any terms it considers appropriate if an appellant fails to appear at the time listed for the hearing of the appeal. But this power should not be interpreted as requiring the personal attendance of the appellant on the hearing of an appeal. Appearance by counsel in the absence of a party is not an abnormal occurrence in civil litigation, particularly, perhaps, in appellate courts. Such appearance is recognised as being sufficient. There is no reason to interpret s 430D as requiring the physical attendance of an appellant upon the hearing of an appeal against an order of the Children’s Court; at least when that appeal is not concerned with the criminal law.
There is no provision in the Act which commands the personal attendance of an appellant in an appeal such as that with which the County Court was concerned in this case. Even in a case where a statute contained a specific command requiring a particular proposed litigant to perform a specific act concerning the preparation and filing of documents, the Appeal Division of this Court has held that despite that obligation being imposed on a specific person it is able to be discharged on behalf of that person by an agent: DPP & anor v His Honour Judge Fricke [1993] 1 VR 369. The present case is a fortiori. SM was present by her counsel, Mr Brown.
In making a decision for the purposes of the Act the paramount consideration of a judge must be the best interests of the child. He or she must consider, inter alia, the protection of the child’s rights[2]. In reaching the decision to strike out SM’s appeal in the circumstances in which she did, the judge in this case failed to afford her procedural fairness – a right to which she was entitled. In the circumstances, the order striking out her appeal must be set aside and the appeal itself remitted to the County Court to be heard and determined according to law.
[2]The Act, s 10(1) and (2).
SM will turn 18 on 11 October 2017 and will thenceforth not be subject to the provisions in the Act. Specifically, she will no longer be the subject of the CBSO which currently applies to her. For her to have the benefit of a lawful determination of her current situation it will be necessary for her appeal to be heard and determined before that date. Accordingly the order of remitter will carry a rider to ensure, as far as is reasonably practicable, that her appeal is heard as soon as possible.
As already noted, her Honour Judge Hannan delivered a ruling concerning the interaction between a number of provisions in the Act as to whether a person in the position and of the age of SM could be the subject of a CBSO. In the course of hearing this application, counsel, both for SM and for the DHHS, urged this Court to consider Judge Hannan’s ruling and to rule as to its legality, having regard to the various sections of the Act with which that ruling was concerned. During the hearing I expressed doubt as to whether, in all the circumstances, such a consideration by this Court was appropriate. I have now concluded that I should not accede to counsels’ request. In the circumstances any ruling as to these issues would do no more than produce an inappropriate extra-curial advisory opinion. Accordingly, I decline to accede to counsels’ request.
The Court will make the following orders:
1.That the order of the County Court of 20 April 2017 striking out the applicant’s appeal from the order of the Family Division of the Children’s Court by which she was made subject to a CBSO be set aside forthwith.
2.That the said appeal be remitted to the County Court to be listed to be heard as soon as reasonably practicable having regard to the matters referred to in the reasons for judgment published herewith.
3.That the question of costs be reserved to be heard and determined, if necessary, on a date to be fixed.
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