Spruill v Director-General of the Department of Community Services

[2001] NSWCA 413

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	X v Director-General of the Department of Community Services [2001] NSWCA 413
Hearing dates:	22 October 2001
Decision date:	19 November 2001
Before:	Beazley JA
Decision:	See para 41
Catchwords:	Jurisdiction to hear appeal from the District Court
Legislation Cited:	Children (Care and Protection) Act 1987 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Justices Act 1902 (NSW) District Court Act 1973 (NSW) Supreme Court Act 1970 (NSW)
Cases Cited:	Druett v Director-General of Community Services [2001] NSWCA 126 Director General, New South Wales Department of Community Services v Y [1999] NSWSC 644 Re Anna, Bruno, Courtney and Deepak [2001] NSWSC 79
Category:	Principal judgment
Parties:	X Director-General of the Department of Community Services
Representation:	Counsel: Appellant/Opponent: In Person Respondent/Claimant: P Singleton   Solicitors: Appellant/Opponent: In Person Respondent/Claimant: I V Knight
File Number(s):	CA 40774/01
Decision under appeal	Court or tribunal: District Court Date of Decision: 26 September 2001 Before: Black DCJ File Number(s): 8988/01

HEADNOTE

FACTS

The appellant, X, has made a number of applications to the Children’s Court seeking leave to have a care order made in respect of his daughter reviewed. On the last application leave was refused by Zdenkowski, Children’s Court magistrate. X appealed to the District Court. Black DCJ struck out the appeal on the grounds that there was no jurisdiction to hear an appeal from a refusal to grant leave. 

X has appealed from Black DCJ’s decision to the Court of Appeal. The Director-General of the Department of Community Services, by way of Notice of Motion, sought to have X’s appeal dismissed as incompetent on the grounds that the Court of Appeal had no jurisdiction to entertain the appeal. 

HELD

(i) A statutory appeal to the District Court of the kind provided by s 91 of the Children and Young Persons (Care and Protection) Act1998 (NSW) was not an action from which an appeal to the Court of Appeal lies pursuant to s 127 of the District Court Act1973 (NSW): Druett v Director-General of Community Services [2001] NSWCA 126.

(ii)   Section 247 of the 1998 Act did not confer jurisdiction on the Court. The section simply confirmed the traditional parens patriae jurisdiction of the Court. 

(iii) Section 109 of the Justices Act1902 (NSW) does not confer jurisdiction on the Court. The section merely stated the orders the Court could make in an appeal where it had jurisdiction.

ORDERS 

(i)   The claimant/respondent be designated as the Director-General of the Department of Community Services; 

(ii)   Appeal dismissed but the Notice of Appeal is to be treated as if it were a summons in the Common Law Division of the Supreme Court; 

(iii)   The opponent to file an amended document before 3 December 2001 seeking prerogative or other relief in the Common Law Division of the Supreme Court; 

(iv)   Remit the matter to the Common Law Division; 

(v)   No order as to costs; 

(vi)   Liberty to apply on 2 days notice. 

Judgment

1. BEAZLEY JA: X is the father of Z who is the subject of a care order made under the Children (Care and Protection) Act 1987 (NSW) (the 1987 Act). X has made a number of applications to the Children’s Court seeking leave to have the care order reviewed. The last such application was heard by Mr Zdenkowski, Children’s Court Magistrate on 3 September, 2001. Leave was refused. X sought to appeal to the District Court from that order. That appeal came before Black DCJ who, on the application of the Director-General of the Department of Community Services (the Director) struck out the appeal on the basis there was no right to appeal in respect of an application for leave. X has brought an appeal to this Court from that decision.

2. The Director, by way of Notice of Motion filed on 17 October 2001, seeks to have X’s appeal to this Court dismissed as incompetent on the ground that the Court of Appeal has no jurisdiction to entertain the appeal: see Druett v Director-General of Community Services [2001] NSWCA 126.

3. Although the point advanced by the claimant can be dealt with shortly, X has made several unsuccessful attempts to have the care order made in respect of his daughter reversed, and is clearly confounded by the legal technicalities which he is encountering. Accordingly, a short review of the history of the making of the care order and the subsequent legal proceedings initiated by X is warranted. It should be noted that X’s wife, who is the mother of the child, is not a party to the proceedings before this Court, but supports her husband’s application.

Background

4. X’s daughter, born in 1999, was removed from the care of her parents on 28 January 2000 by officers of the Department of Community Services. On 31 January 2000 the Director filed an application in the Children’s Court seeking care orders in respect of Z pursuant to s 72 of the 1987Act. On 10 October 2000, Mr Barnett, Children’s Court Magistrate, made orders placing the child in the care of her maternal grandmother until she reached 18 years of age.

5. On 16 October 2000, pursuant to s 81 of the 1987 Act, X and his wife appealed to the District Court. On 30 November 2000 Puckeridge DCJ, after reconsidering the merits of the case, dismissed the appeal and confirmed the orders of the Children’s Court.

6. On 18 December 2000, X applied pursuant to s 90 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the 1998 Act) to the Children’s Court for leave to make an application to rescind the care order. On 19 February 2001, Mr Mitchell, Magistrate of the Children’s Court, refused leave to bring the application.

7. On 22 February 2001, the opponent lodged an appeal to the District Court challenging Mr Mitchell’s decision refusing leave. The only section of the 1998 Act which provides for an appeal is s 91. The matter came before Knight DCJ. The Director applied to have the appeal dismissed on the grounds that there was no jurisdiction to entertain it. On 21 March 2001 Knight DCJ held that the District Court did not have jurisdiction under s 91 of the 1998 Act to hear an appeal from a decision of a Magistrate refusing leave to bring an application challenging a care order.

8. On 28 March 2001, X commenced proceedings in the Common Law Division of the Supreme Court. He sought to challenge the Children’s Court decision of 19 February 2001 refusing leave to apply for a rescission of the care order. The matter was heard by Hulme J on 15 May 2001. His Honour proceeded on the basis that s 104 of the Justices Act 1902 (NSW) potentially provided a source of jurisdiction to hear the matter, on the basis that the order of the Magistrate refusing leave was interlocutory within the meaning of s 104.

9. Hulme J, however, was not satisfied that any relevant error of law was made (see Mason P on the application for leave referred to below). Nonetheless, he made the following comments:

“Having regard to their right to make a further application under section 90 and having regard to the errors which, as I see it, Mr Mitchell made, I am disinclined to grant them relief of setting aside his orders and remitting the matter to him, because I think they would be better served by making a fresh application which I would expect to come before a different magistrate.”

10. Hulme J also accepted that there was an alternative basis upon which the summons might properly be before the Court, namely in the Court’s original jurisdiction as parens patriae. However, his Honour dismissed the summons on that ground for lack of evidence.

11. An application for leave to appeal from Hulme J’s decision was dismissed by the Court of Appeal on 25 June 2001.

12. On 26 June 2001 X lodged a fresh application in the Children’s Court pursuant to s 90 of the 1998 Act again seeking leave to rescind the care order. On 3 September 2001 Mr Zdenkowski, Magistrate of the Children’s Court, declined to grant leave on the ground that there had not been a significant change in circumstance to warrant a review of the care order.

13. On 5 September 2001, X again appealed to the District Court from the decision of Mr Zdenkowski. On 26 September 2001, Black DCJ dismissed the appeal for the same reason as Knight DCJ, namely that the Court did not have jurisdiction to hear the matter.

14. As already stated, the current appeal is from the decision of Black DCJ.

Relevant Legislation

15. The original care order in respect of Z was made under the 1987 Act. That Act was replaced by the 1998 Act. Section 90 and 91 of the 1998 Act, with which I am presently concerned, came into operation on 18 December 2000, and is the relevant legislation for present purposes.

16. Under s 91 of the 1998 Act, an appeal lies to the District Court from a decision of a magistrate in respect of an application to rescind or vary a care order made brought under s 90. The section provides:

“s 90   Rescission and variation of care orders

(1)   An application for the rescission or variation of a care order may be made with leave of the Children’s Court.

(2)   The Children’s Court may grant leave if it appears that there has been a significant change in any relevant circumstances since the order was made or was last varied.

(3)   An application may be made by:

(a)   the Director-General, or

…

(c)   a person having parental responsibility for the child or young person, or

(d)   a person from whom parental responsibility for the child or young person has been removed …

…

(7)   If the Children’s Court is satisfied on an application made to it with respect to a child or young person, that it is appropriate to do so:

(a)   it may, by order, vary or rescind an order for the care and protection of the child or young person, and

(b)   if it rescinds such an order – it may, in accordance with this Chapter, make any one of the orders that it could have made in relation to the child or young person had an application been made to it with respect to the child or young person

…

s 91 Appeals

(1)   A party to proceedings who is dissatisfied with an order (other than an interim order) of the Children’s Court may, in accordance with the rules of the District Court, appeal to the District Court against the order.

(2)   An appeal is to be by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence on which the order was made, may be given on appeal.

…

(4)   In addition to any functions and discretions that the District Court has apart from this section, the District Court has, for the purposes of hearing and disposing of an appeal, all the functions and discretions that the Children’s Court has under this Chapter or Chapter 6.

(5)   Without limiting the generality of subsection (4), the District Court may confirm, vary or set aside the decision of the Children’s Court.

(6)   The decision of the District Court in respect of an appeal is taken to be the decision of the Children’s Court and has effect accordingly.” (emphasis added)

17. The predecessor to s 91 of the 1998 Act was s 81 of the 1987 Act. For present purposes the only material difference between the two provisions appeared in subsection (1). Section 81(1) was in the following terms:

“s 81   Appeals

(1)   Any person who is dissatisfied with a decision of the Children’s Court under this Part may, in accordance with the rules of the District Court, appeal to the District Court against the decision.”

18. The right to appeal from the District Court to the Supreme Court is found in s 127 of the District Court Act 1973 (NSW). Section 127 provides:

“s 127   Right of appeal to the Supreme Court

(1)   A party who is dissatisfied with a Judge’s judgment or order in an action may appeal to the Supreme Court.” (emphasis added)

19. An “action” is defined in s 4 of the District Court Act to mean “action in the Court …”.

20. Section 48 of the Supreme Court Act1970 (NSW) assigns such appeals to the Court of Appeal.

Druett v Director-General of Community Services

21. It is convenient at this point to deal directly with the point in issue, namely whether this Court has jurisdiction to hear an appeal from a decision of a District Court judge brought in respect of an appeal purported to be brought under s 91 of the 1998 Act.

22. The Director submits that this issue has been determined by the Court in respect of s 81 of the 1987 Act in Druett and further submits that s 91 of the 1998 Act is in relevantly similar terms.

23. In Druett Naughton DCJ heard an appeal from a decision of Mr Huber, Children’s Court Magistrate pursuant to s 81 of the 1987 Act. The appellant appealed to the Court of Appeal. The Court was concerned with whether there was jurisdiction to entertain the appeal. Hodgson JA (Giles JA and Ipp AJA agreeing) said at 12-13:

“There are several decisions of this Court which establish that a statutory appeal to the District Court, of the kind provided by s 81 of [the 1987 Act], is not an action from which an appeal to this Court lies pursuant to s 127 of the District Court Act. Those decisions are Cook v Head (1976) 1 NSWLR 176, Hudson v South Sydney Municipal Council (1981) 46 LGRA 128, and Victims Compensation Fund Corporation v District Court of New South Wales (1997) 92 A Crim R 224.

… It seems to me that such statutory appeals are not within any provision of the District Court Act: rather the jurisdiction to hear them is given by the Act providing for the appeal, in this case [the 1987 Act] … no appeal to this Court lies from the decision of the District Court in this case.”

24. Section 91 of the 1998 Act is, for all relevant purposes, substantially the same as s 81 of the 1987 Act in that it relates to statutory appeals of the kind referred to by Hodgson JA. There is nothing to distinguish this case from Druett, which itself applies a well established line of authority on this issue. It follows that the Court of Appeal does not have jurisdiction to hear the appeal purported to be brought by X from the decision of Black DCJ.

Other Issues Raised by X

25. Strictly, that disposes of the application before me and in the ordinary course, that would mean that the appeal should be dismissed. However, there are a number of issues which were raised during argument to which reference should be made.

26. During the course of the various proceedings in this matter, comments have been made in judgments upon which X acted, believing that the comment directly applied to the circumstances in which he currently finds himself. The first such comment was made by Mason P in an unreported judgment in which his Honour stated:

“In my view, the matter remains an appropriate one to be determined in the Children’s Court, that Court being subject to appellate review on the facts to the District Court, and appellate review on the law to the Supreme Court.” (emphasis added)

27. That comment was not necessary to the decision and was not an essential part of it. In legal terms it was obiter dicta. X is understandably confused by the fact that he believed that if he followed what Mason P said, his legal course would be properly set. Unfortunately that is not the case. His Honour’s comment appears to relate to the bringing of proceedings in the Children’s Court. The matter with which I am here concerned relates to an application for leave to bring such proceedings. Black DCJ has followed the decision of Knight DCJ that such an application is not susceptible to appeal to the District Court under s 91 of the 1998 Act. Further, his Honour’s comment in relation to “appellate review on the law” was that appellate review was to the Supreme Court. That is quite different to saying that there is a right of appeal to the Court of Appeal.

28. There are provisions in the Justices Act which provide for an appeal to the Supreme Court from certain decisions and orders of magistrates on a question of law and it is to that which Mason P was presumably referring. It is unnecessary for the purposes of the present application to determine whether those provisions have any application to the decision of Mr Zdenkowski.

29. The second comment was made by Black DCJ when he said that X had a right of appeal to this Court. That comment again was obiter dicta. Having regard to the conclusion at which I have arrived, that comment was wrong. Counsel for the Director appropriately advised me that counsel who appeared for the Director in the proceedings heard by Black DCJ failed to correct his Honour’s error at the time and accordingly does not seek any costs of the application before me. Again, unfortunately, X believed he could safely follow his Honour’s comment and appeal to this Court. For the reasons which I have given that is not the case.

30. X also put forward two further bases upon which, he submitted, this Court has jurisdiction. First, he claimed that the Court had jurisdiction under s 247 of the 1998 Act. That provision provides:

“s 247   Jurisdiction of the Supreme Court

Nothing in this Act limits the jurisdiction of the Supreme Court.”

31. The Director submitted s 247 did not confer any jurisdiction on the Court. Rather it “simply assert[ed] that there is no restriction on jurisdiction. [The section did] not enable [the] Court to entertain an appeal from the District Court”. It was submitted that this section simply confirmed the traditional parens patriae jurisdiction of the Court.

32. The parens patriae jurisdiction of the Court was discussed by Austin J in Director General, New South Wales Department of Community Services v Y [1999] NSWSC 644. His Honour said at 88-89:

“The Court’s historical jurisdiction has survived the enactment of New South Wales legislation dealing with the welfare of children. In K v Minister for Youth and Community Services [ [1982] 1 NSWLR 311] Helsham CJ in Eq held that the court’s inherent power to protect the interests of infants, deriving from the parens patriae jurisdiction had not been displaced by the Child Welfare Act 1939 (NSW). His Honour said (at 323):

‘In its role as parens patriae [the Court] has always had power to interfere with the actions of guardians where necessary to protect the welfare of wards. This is, of course a power not restricted to wards nor arising because of wardship. It is a power of the Sovereign to protect persons who from their legal disability stand in need of protection…[I]t would seem to me that good reason would have to be shown why the Court’s jurisdiction over these children is excluded.’

[The 1987 Act], the Act under which the Children’s Court proceedings in the present case were brought, clearly recognises the inherent jurisdiction of the Supreme Court … S 88(4) states that nothing in Pt 5 (which deals with children in need of care) limits the jurisdiction of the Supreme Court ‘with respect to the custody and guardianship of children.’ S 96 contains an equivalent provision with respect to Pt 6 of the Act (which deals with wards and protected persons). In my opinion these statutory references to the Supreme Court’s jurisdiction with respect to the custody and guardianship of children identify or include the Court’s inherent parens patriae jurisdiction.”

33. Section 247 of the 1998 Act does not assist X in the present case. It does not enlarge the jurisdiction of the Court. As Hodgson J said in Re Anna, Bruno, Courtney and Deepak [2001] NSWSC 79 at 21, s 247 of the 1998 Act preserves the “traditional jurisdiction” of the Court. This Court does not have before it an application by X under that jurisdiction. In any event, the Court of Appeal is not the appropriate forum to hear such an application.

34. The second alternate basis for jurisdiction was said to be provided by s 109 of the Justices Act. That section provides:

“s 109   Powers of the Supreme Court in determining appeals

The Supreme Court may, after hearing an appeal, determine the appeal by dismissing the appeal or by doing any one or more of the following:

(a)   confirming, quashing, setting aside or varying the conviction, order or sentence appealed against or any part of it …”

35. The Director submitted that s 109 merely stated the orders the Court could make in an appeal where it had jurisdiction. The section in itself did not confer jurisdiction. Further the Director argued that s 109 appeared in the Part of the Act that created a regime for appeals from the Local Court to a single judge of the Common Law Division. It did not concern appeals or purported appeals from the District Court to the Court of Appeal.

36. I agree. Section 109 of the Justices Act does not confer on this Court jurisdiction to hear an appeal from the District Court.

Future options for X

37. That leaves the question as to what should happen to these proceedings. As I have said, in the normal course the appeal would be dismissed. Counsel for the Director recognised that X could seek to have the decision of Black DCJ quashed by filing a summons for prerogative relief. However, as pointed out in Druett the relief which can be obtained in that regard is limited and in any event would leave the decision of Mr Zdenkowski standing. For X to achieve his aim of having that decision set aside, he would have to seek to challenge that decision also. I have not considered and make no comment as to whether X would be successful if he did bring such application.

38. I indicated to the parties during the course of the hearing, that rather than simply dismiss the appeal, I would consider whether it would be appropriate to remit the matter to the Common Law Division of the Supreme Court to enable X to have the matter put on the correct legal footing. That would require him to file an amended document in the form of a summons seeking to have the decision of Black DCJ quashed. He could if he wished, join the magistrate in that summons, so that both decisions could be dealt with at the same time.

39. I have decided to follow that approach for the reason that X has come to the Court seeking relief, having been misguided into thinking the Court had jurisdiction. However, I have to stress that bringing an application to the Court does not mean that it will necessarily be successful. X would still have to establish he had grounds for the relief sought.

40. It should also be noted that the opponent is at any point able to initiate fresh proceedings in the Children’s Court. Again I make no comment as to whether such a step would be successful.

41. Accordingly, I propose the following orders:

(i)   The claimant/respondent be designated as the Director-General of the Department of Community Services; 

(ii)   Appeal dismissed but the Notice of Appeal is to be treated as if it were a summons in the Common Law Division of the Supreme Court; 

(iii)   The opponent to file an amended document before 3 December 2001 seeking prerogative or other relief in the Common Law Division of the Supreme Court; 

(iv)   Remit the matter to the Common Law Division; 

(v)   No order as to costs; 

(vi)   Liberty to apply on 2 days notice. 

**********

Amendments

24 April 2020 - Name of appellant anonymised