VB v Chief Executive Officer of the Department of Communities
[2020] WASCA 146
•8 SEPTEMBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: VB -v- CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF COMMUNITIES [2020] WASCA 146
CORAM: QUINLAN CJ
MURPHY JA
MITCHELL JA
HEARD: 14 AUGUST 2020
DELIVERED : 8 SEPTEMBER 2020
FILE NO/S: CACV 112 of 2019
BETWEEN: VB
Appellant
AND
CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF COMMUNITIES
First Respondent
CAROL JACOBS AS ACTING DISTRICT DIRECTOR OF THE DEPARTMENT OF COMMUNITIES (CANNINGTON DISTRICT)
Second Respondent
ANDREA NIXON AS DISTRICT DIRECTOR OF THE DEPARTMENT OF COMMUNITIES (CANNINGTON DISTRICT)
Third Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: HILL J
Citation: VB -v- CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF COMMUNITIES [2019] WASC 315
File Number : CIV 3072 of 2018
Catchwords:
Administrative law - Child welfare - Where primary judge found jurisdictional error in decision to cancel a child's care placement arrangement - Where impugned decision overtaken by subsequent care placement decision - Where appellant had exercised a statutory right to merits review of current care placement decision - Whether primary judge erred in failing to consider whether to grant declaratory relief - Whether declaratory relief should be refused on discretionary grounds of lack of utility and the availability of a more suitable alternative remedy
Legislation:
Children and Community Services Act 2004 (WA), s 57, s 79, s 89, s 93, s 94
State Administrative Tribunal Act 2004 (WA), s 19, s 27, s 29, s 105
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | G M G McIntyre SC & C Bahemia |
| First Respondent | : | A J Sefton & A Ishak |
| Second Respondent | : | A J Sefton & A Ishak |
| Third Respondent | : | A J Sefton & A Ishak |
Solicitors:
| Appellant | : | Carol Bahemia Lawyers |
| First Respondent | : | State Solicitor's Office |
| Second Respondent | : | State Solicitor's Office |
| Third Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Federal Commissioner of Taxation v Futuris Corporation Ltd [2008] HCA 32; (2008) 237 CLR 146
House v The King (1936) 55 CLR 499
Perder Investments Pty Ltd v Elmer (1991) 31 FCR 201
R v Commonwealth Court of Conciliation and Arbitration; ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389
Re Carey; ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501
Re Refugee Tribunal; ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
SH v Chief Executive Officer of Department of Communities [2019] WASCA 31
SZBYR v Minister for Immigration [2007] HCA 26; (2007) 81 ALJR 1190
JUDGMENT OF THE COURT:
The appellant is the grandmother of a child for whom the first respondent (CEO) has parental responsibility until the child reaches 18 years of age, pursuant to an order made under the Children and Community Services Act 2004 (WA) (Act). On 23 August 2018, the third respondent, as delegate of the CEO, decided to cancel an arrangement for the placement of the child in the appellant's care. The appellant sought judicial review of the care placement cancellation decision. The primary judge found that the care placement cancellation decision was infected by jurisdictional error, but declined to grant any relief as a consequence of that finding. The appellant now appeals against the primary judge's decision to dismiss her judicial review application.
For the following reasons, the appeal is without merit and should be dismissed.
Factual background
The primary judge set out the circumstances leading to the application for judicial review in some detail. For present purposes, it is sufficient to note the following uncontroversial facts relating to the decisions made by the respondents in relation to the child.
The child was born in January 2011. The child was placed with the appellant in November 2012, and lived with the appellant from that date until July 2018. In January 2013, the Children's Court made a provisional protection order in respect of the child for a period of 2 years. In June 2015, the Children's Court made a protection order giving the CEO parental responsibility for the child until she reached 18 years of age.[1]
[1] Primary decision [8].
On 2 July 2018, the appellant informed the Department that she was in hospital, and emergency accommodation was arranged for the child for that night.[2]
[2] Primary decision [37].
On 4 July 2018, the second respondent decided that the child would not return to the care of the appellant while a 'standard of care assessment' was completed.[3]
[3] Primary decision [43], [70].
On 11 July 2018, the child was placed with M and A.[4]
[4] Primary decision [55].
On 23 August 2018 the third respondent decided to cancel the child's placement with the appellant.[5] In essence, that decision was made on the basis that the child was at serious risk of harm if she remained with the appellant. The third respondent was also of the view that the appellant was not willing to engage appropriately with the Department to even attempt to address those concerns and risks to the child.[6]
[5] Primary decision [65], [70].
[6] Primary decision [67].
On 7 October 2018, the child was placed with W and R and has remained in their care since that date.[7]
[7] Primary decision [72].
On 30 January 2019, the appellant filed an application in the General Division of the Supreme Court for judicial review, relevantly, of the decision to cancel the child's placement with the appellant.[8]
[8] Primary decision [81].
On 6 February 2019, the child's care plan was modified.[9] The care plan recorded that, on 7 October 2018, the decision was made to place the child with W and R and that the child was to remain in their care.[10] There was no evidence that this care plan was provided to the appellant.[11]
[9] Primary decision [76].
[10] 6/2/19 Care Plan, pages 1-2 (Green AB 55 - 56).
[11] Primary decision [76].
The care plan which was current at the date of the primary decision was approved on 19 March 2019. It indicated that the child was placed with W and R on 7 October 2018, and was settled and happy in that placement.[12] The appellant was provided with a copy of the 19 March 2019 care plan on 20 March 2019.[13]
[12] 19/3/19 Care Plan, page 4 (Green AB 84).
[13] Primary decision [77].
On 2 April 2019, the appellant filed an application to review the care planning decision concerning the placement of the child with W and R, and the conditions surrounding the contact between the child and the appellant. A hearing before the care plan review panel occurred on 30 May 2019. On 30 June 2019, the care plan review panel provided the CEO with its recommendations.
On 19 July 2019, the CEO notified the appellant of her decision to uphold the placement of the child with W and R, and to modify the conditions regarding contact between the child and the appellant.
On 1 August 2019, the primary judge heard the judicial review application. The application for judicial review was dismissed on 30 August 2019.
It is common ground that the appellant subsequently instituted proceedings in the State Administrative Tribunal, seeking merits review of the CEO's decision referred to at [14] above. Those proceedings have not yet been determined.
Statutory context
The following statutory provisions are relevant to understanding the steps taken by the parties and the primary judge's decision.
Mandatory relevant considerations
Section 7 of the Act provides that:
In performing a function or exercising a power under this Act in relation to a child, a person, the Court or the State Administrative Tribunal must regard the best interests of the child as the paramount consideration.
Section 8 of the Act identifies matters which 'must be taken into account' in determining, for the purposes of the Act, what is in a child's best interests. Those matters relevantly include, in s 8(1)(f):
any wishes or views expressed by the child, having regard to the child’s age and level of understanding in determining the weight to be given to those wishes or views
Section 9 of the Act identifies a number of principles that must be observed in the administration of the Act, which includes the principle set out in s 10(1) of the Act. Section 10(1) of the Act provides:
If a decision under this Act is likely to have a significant impact on a child’s life then, for the purpose of ensuring that the child is able to participate in the decision making process, the child should be given —
(a)adequate information, in a manner and language that the child can understand, about —
(i)the decision to be made; and
(ii)the reasons for the Department’s involvement; and
(iii)the ways in which the child can participate in the decision making process; and
(iv)any relevant complaint or review procedures;
and
(b)the opportunity to express the child’s wishes and views freely, according to the child’s abilities; and
(c)any assistance that is necessary for the child to express those wishes and views; and
(d)adequate information as to how the child’s wishes and views will be recorded and taken into account; and
(e)adequate information about the decision made and a full explanation of the reasons for the decision; and
(f)an opportunity to respond to the decision made.
(emphasis added)
Section 10(2) of the Act provides that, in the application of the principle set out in s 10(1), due regard must be had to the age and level of understanding of the child concerned. Section 10(3)(a) provides that the reference to decisions that are likely to have a significant impact on a child's life includes decisions about placement arrangements in respect of the child.
Effect of protection order (until 18)
At the time of the primary judge's decision, the child was subject to a protection order (until 18) made under the Act. Section 57 of the Act provides:
(1)A protection order (until 18) is an order giving the CEO parental responsibility for a child until the child reaches 18 years of age.
(2)While a protection order (until 18) is in force in respect of a child the CEO has parental responsibility for the child to the exclusion of any other person.
Placement arrangements
Section 79 of the Act makes the following provision in relation to placement arrangements:
(1)In this section —
child means a child who is in the CEO’s care.
(2)The CEO may make —
(a)an arrangement for the placement of a child —
(i)with an individual approved by the CEO in accordance with the regulations; or
(ii)with a person who has entered into an agreement under section 15(1) for the provision of placement services; or
(iii)in a residential facility operated or managed by the Department or another public authority;
or
(b)any other arrangement for the placement of the child that the CEO considers appropriate.
(3A)Subsection (2) does not authorise the CEO to make an arrangement for the placement of a child in a secure care facility.
(3)The CEO may at any time cancel a placement arrangement made in respect of a child and make another placement arrangement in respect of the child.
(4)Without limiting section 248(1), the regulations may make provision for and in relation to the approval of individuals for the purposes of subsection (2)(a)(i).
Under s 81 of the Act, before making a placement arrangement in respect of an Aboriginal child, the CEO must consult with at least one of the following:
(1)an officer who is an Aboriginal person; or
(2)an Aboriginal person or Aboriginal agency that, in the CEO's opinion, has relevant knowledge of the child, the child's family or the child's community.
Care plans
Section 89(2) of the Act requires the CEO to 'prepare and implement' a care plan for a child who is the subject of a protection order (until 18). Under s 89(4), the CEO may modify a care plan at any time if the CEO considers that it is appropriate to do so. For this purpose, s 89(1) defines a 'care plan' in the following terms:
care plan means a written plan that —
(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.
(emphasis added)
Section 90(1) of the Act requires the CEO to carry out a review of the operation and effectiveness of every care plan at regular intervals not exceeding 12 months. The CEO must prepare a written report on the outcome of the review under s 90(3) of the Act.
Review of care planning decisions
Section 93(1) relevantly allows any carer of a child or other person considered by the CEO to have a direct and significant interest in the wellbeing of the child to apply to the CEO for the review of a care planning decision. Section 91 of the Act relevantly defines a 'care planning decision' to mean a decision set out in a care plan for the child.
Under s 93(3) of the Act, the review application to the CEO must be made within:
(a)14 days after the day on which the applicant received a copy of a care plan or modification of a care plan setting out the relevant care planning decision; or
(b)any longer period that the CEO in special circumstances allows.
Section 93(4) requires the CEO to refer the review application, together with such other material as the CEO considers relevant, to the care plan review panel established under s 92 of the Act. Section 93(5) requires the care plan review panel to consider the application and other material (if any) and report to the CEO on its recommendations in respect of the application. Under s 93(6) of the Act:
The CEO, after considering the report of the care plan review panel and other information available to the CEO, must —
(a)confirm, vary or reverse the care planning decision …; or
(b)substitute another decision for the care planning decision …; or
(c)refer the matter back to the care plan review panel for further consideration and report.
Section 94(1) of the Act provides that:
A person who is aggrieved by a decision made by the CEO under section 93(6)(a) or (b) may apply to the State Administrative Tribunal for a review of the decision.
Provisions of the State Administrative Tribunal Act
Section 19 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) deals with the relationship between judicial review proceedings and the Tribunal's review jurisdiction. Section 19(1) defines 'judicial review proceedings' to include proceedings in which a writ of certiorari or a declaratory judgment is sought.
By s 19(2) of the SAT Act, the right given by s 94(1) of the Act to have a decision reviewed by the Tribunal does not exclude any right to take judicial review proceedings in relation to the decision.
Under s 19(3)(c) of the SAT Act, if judicial review proceedings have commenced in relation to a reviewable decision, a Tribunal proceeding for the review of the decision cannot subsequently be commenced. Section 19(5) of the SAT Act provides:
Subsection (3)(c) applies both during the judicial review proceedings and after those proceedings have ended but it does not apply if they are dismissed or struck out —
(a)because of procedural defects and not on their substantive merits; or
(b)because the court considers them to be inappropriate or considers that a Tribunal proceeding would be more appropriate.
(emphasis added)
The nature of the Tribunal's review proceedings are provided for in s 27 of the SAT Act, involving a hearing de novo, the purpose of which is to produce the 'correct and preferable decision at the time of the decision upon the review'. The Tribunal is not limited by the material which was before the original decision-maker, or the original decision-maker's reasons for decision. Section 29(1) of the SAT Act gives the Tribunal functions and discretions corresponding to those exercisable by the decision‑maker in making the reviewable decision. The Tribunal's powers relevantly include those specified under s 29(3) of the SAT Act:
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.
A review application to the Tribunal is relevantly to be commenced within 28 days of the applicant being given notice of the decision or such further time extended by the Tribunal.[14]
[14] Section 20 of the SAT Act read with r 9 and r 10 of the State Administrative Tribunal Rules 2004 (WA).
Section 105 of the SAT Act provides for an appeal from the decision of the Tribunal to the Supreme Court, by leave, on a question of law.
The primary judge's decision
In the primary proceedings, the appellant applied for judicial review of the CEO's decision of 23 August 2018 to cancel the placement arrangement made in respect of the child, and to make another arrangement. The form indicated that the appellant applied for judicial review of this decision and sought a declaration, a writ of certiorari and a writ of mandamus.[15]
[15] Blue AB 43.
The primary judge found that the only ground of judicial review which was established was a failure to take into account a mandatory relevant consideration in making the decision 'to cancel the placement of the child with the [appellant]'. The primary judge's reasoning appears in the following passages:[16]
Any decision by the third respondent to cancel the placement of the child with the [appellant] was required to be made with the paramount consideration of the best interests of the child. The third respondent was required to take into account each of the mandatory relevant considerations set out in s 8(1) of the Act, although the weight to be attributed to each of these matters was a matter for the decision maker. Pursuant to s 10 of the Act, as a decision under s 79(3) is one which is likely to have a significant impact on the child's life, the child needed to be given an opportunity to participate in the decision-making process and to express her wishes and views.
The third respondent's evidence was that she considered all the evidence gathered and that in making her decision, she generally takes into account what the child has said.
There is no evidence before me to suggest that the child was given an opportunity to participate in the decision making process or that her views were sought in relation to the matter. The only evidence is that on 7 August 2018, the child was given reasons as to why she was not able to live with the [appellant] and that the child stated that she was enjoying her temporary placement with A and M, but was missing the [appellant]. In my view, this exchange did not provide the child with an opportunity to participate in the decision-making process; it simply informed the child of the decision that had been made that she remain in her temporary placement.
The opportunity to be afforded to the child was a matter that was a mandatory relevant consideration in assessing the best of the child under s 8 of the Act, specifically required under s 10 of the Act and consistent with the charter of rights that governed the care of the child. Given the provisions of s 10 of the Act, it cannot be said that this was an insignificant factor. The failure to seek the views of the child is, in my view, a jurisdictional error. (emphasis added)
[16] Primary decision [143] - [146].
The primary judge then turned to consider the question of remedies, noting that:[17]
The [appellant] seeks a declaration that the decision is unlawful together with writ of certiorari quashing the decision of the third respondent and a writ of mandamus directing the decision-maker to make the decision according to law.
[17] Primary decision [148].
The primary judge then observed that certiorari is a discretionary remedy, which should not be made as a matter of discretion 'if the court considers it would be a futile remedy or there is a more convenient and satisfactory alternate remedy'.[18] Her Honour also held that, in exercising her discretion, it was necessary to have regard to s 7 of the Act which stipulates that the paramount consideration is the best interests of the child.[19]
[18] Primary decision [149].
[19] Primary decision [150].
The primary judge found that, as the child care plan was not revised until February 2019, the appellant had no suitable alternative to commencing the proceedings in January 2019.[20] The primary judge then said:[21]
However, since the third respondent's decision to cancel the placement of the child with the [appellant] and the commencement of these proceedings, the child's care plan has been the subject of an annual review. Under the Act, the care plan is required to include any decision about placement arrangements. The current care plan maintained the decision to place the child with her current carers. The [appellant] exercised her rights under the Act to seek a merits review of the current care plan. The [appellant] has a right to appeal this decision to the State Administrative Tribunal. For this reason, the [appellant] has available to her a more appropriate avenue to review the current placement arrangement of the child.
The most that the [appellant] could achieve from this application is to have the third respondent's decision to cancel the placement set aside and the application sent back to the third respondent for reconsideration. In that event, the [appellant] could contend that the child should be returned to her care, although the third respondent would not be required to return the child to her care.
If I do not order any remedy, save for the observations I make below, the [appellant's] position is not substantially different. The [appellant] can appeal the decision of the CEO to confirm the current care plan to the State Administrative Tribunal and argue before that Tribunal that the child should be returned to her care.
As matters stand, the [appellant] is entitled to appeal the decision of the CEO in respect of the current care plan of the child. Any appeal would include consideration of the current placement of the child. It is in the child's best interests that decisions concerning the placement of the child be based on the most up to date information.
[20] Primary decision [152].
[21] Primary decision [153] - [156].
The primary judge noted that the appellant was never formally advised 'of the decision to cancel the placement or the reasons for this decision' and, in breach of the requirements of the Act, the child's care plan was not updated until February 2019.[22] The primary judge observed that, had the plan been modified and provided to the appellant 'as soon as [was] practicable' after the decision to cancel the placement had been made, the appellant would have been entitled to a merits review of the third respondent's decision. The primary judge said that this opportunity had been lost by reasons of the respondents' delay. The primary judge then said:[23]
As was put to me by the [appellant] in support of a submission that I should exercise my decision to issue a writ of certiorari, the issue this has created is that the decision by the third respondent to cancel the placement of the child with the [appellant] and to make another placement decision has now become the 'status quo'.
[22] Primary decision [157].
[23] Primary decision [158].
After making some further criticism of the respondents' delays,[24] the primary judge concluded:[25]
However, any additional review or decision-making process will only create further uncertainty in the child's life. In my view, the best interests of the child are served by declining to exercise my discretion to make any orders as a consequence of the error of law I have identified.
For these reasons, I do not exercise my discretion to make any orders consequential on the error of law that has been identified.
(emphasis added)
[24] Primary decision [159] - [162].
[25] Primary decision [163] - [164].
The primary judge ordered that the appellant's application for judicial review be dismissed.
The appeal to this court
The appellant now appeals to this court against the dismissal of her judicial review application on the sole ground that:
The [primary judge] erred in law in failing to consider and grant relief by way of a Declaration in that she:
a. found that the [CEO] had made out jurisdictional error in respect of a mandatory relevant consideration which was significant factor in the context of the Act;
b. found that merit review to the State Administrative Tribunal was in the best interests of the child, and thus declined to grant relief by way of certiorari and mandamus;
c. did not consider granting relief by way of declaration
Appellant's submissions
The appellant submits that 'the primary judge did not consider making a declaration as to the decision which gave rise to the legal controversy between the parties'.[26]
[26] Appellant's submissions, par 62.
The appellant also submits that a declaration would have utility. The appellant submits that in this case:[27]
(1)The effect of the decision under review will not have the effect of 'turning back the clock'.
(2)It will not change the current placement arrangement of the child.
(3)There is an on-going controversy between the parties, namely whether the decision to cancel the placement arrangement for the child was validly made.
(4)A declaration will have no greater or lesser effect on the proceedings before the Tribunal than the reasons for decision which find jurisdictional error.
[27] Appellant's submissions, par 67.
The appellant submits that a declaration will not be futile, in that without a declaration the effect of the decision will otherwise be longstanding, until the child is 18 years old.[28] The appellant submits that, without a declaration, the impugned decision may well form the basis for 'heuristic thinking' at each annual care plan review by the Department.[29] The appellant submits that the effect is likely to be long lasting, in that the assessment that the appellant has caused the child to suffer significant harm as a result of neglect now forms part of the Department's records.[30]
[28] Appellant's submissions, par 68.
[29] Appellant's submissions, par 69 - 70.
[30] Appellant's submissions, par 71.
The appellant also submits that, if a declaration is not granted, there is a real danger that the impugned decision may never be subject to external review. The Department did not modify the child's care plan until after the commencement of judicial review proceedings. A change to the existing care plan now may well result in the Tribunal exercising its discretion to not proceed with the review of the former, overtaken, care plan.[31]
[31] Appellant's submissions, par 74, referring to the approach taken in SH v Chief Executive Officer of Department of Communities [2019] WASCA 31 [103].
Finally, the appellant submits that a declaration 'may go some way to address the disparity in power between the parties', as evidenced by the history of the Department's dealings with her.[32]
[32] Appellant's submissions, par 75.
In oral submissions, senior counsel for the appellant asserted that the Department was not applying the primary judge's finding in its continued dealings with the appellant and others. While the appellant's counsel accepted that the care placement cancellation decision had been overtaken by subsequent care planning decisions, he submitted that a declaration is more likely to have an educative effect on the Department in its future dealings with the appellant and others. While accepting that a declaration would have no legal or practical effect in relation to the impugned decision, he contended that a declaration should be made on the basis that it would encourage better performance by the Department in the future.[33]
Respondents' submissions
[33] Appeal ts 5 - 6, 8, 12, 14.
The respondents submit that the appeal should be dismissed on the basis that, contrary to the premise of the ground of appeal, the primary judge did consider whether to grant declaratory relief and, in exercise of her discretion, declined to do so.[34]
[34] Respondents' submissions, par 4, 6 - 8.
Alternatively, the respondents submit that, even if the primary judge did not consider whether to grant declaratory relief, no such relief should be granted. The respondents submit that this court should exercise its discretion to refuse declaratory relief for essentially the same reasons that the primary judge decided not to grant certiorari. That is, it would be futile to make a declaration and a more convenient and satisfactory remedy exists. The placement cancellation decision has been overtaken by the issue of a revised care plan for the child. The revised care plan confirms the current placement of the child, which has been the subject of an unsuccessful internal merits review, and in respect of which a right exists to apply to the Tribunal for a review of the decision. The respondents submit that the appellant can argue before the Tribunal that the child should be returned to her care and it is in the child's best interests that decisions concerning the child's placement be based on the most up-to-date information.[35]
[35] Respondents' submissions, par 5, 9 - 15.
The respondents note the appellant's concern that relevant decision‑makers in the future appreciate and take into account that the placement cancellation decision involved a jurisdictional error, in that the child's views and wishes were not obtained and had regard to when making the decision. The respondents submit that the granting of a declaration will have no greater or lesser effect than the reasons for decision which find jurisdictional error, and that this is a further reason for not granting the declaration sought.[36]
[36] Respondents' submission, par 15.
Discretionary power to make declarations in judicial review proceedings
The court's power to grant declaratory relief in judicial review proceedings, even when certiorari and mandamus may not lie, is illustrated by the High Court's decision in Ainsworth v Criminal Justice Commission.[37] In that case, the Commission prepared a report to Parliament containing adverse recommendations about certain persons involved in the poker machine industry. The court held that the Commission was required to comply with the rules of procedural fairness in preparing the report, and had failed to give the persons an opportunity to be heard in opposition to the Commission's recommendations. However, the court held that mandamus did not lie, because the Commission was under no relevant duty, and certiorari did not lie because the report, of itself, had no legal effect or consequences which might be quashed by a writ of certiorari.[38]
[37] Ainsworth v Criminal Justice Commission (1992) 175 CLR 564.
[38] Ainsworth (579 - 580).
In Ainsworth, the plurality observed:[39]
It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which '[i]t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise.' However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have 'a real interest' and relief will not be granted if the question 'is purely hypothetical', if relief is 'claimed in relation to circumstances that [have] not occurred and might never happen' or if 'the Court's declaration will produce no foreseeable consequences for the parties'.
(citations omitted)
[39] Ainsworth (581 - 582).
The court found it appropriate to make a declaration that the Commission failed to observe the requirements of procedural fairness in reporting adversely on the appellants in that case. The court held that the report had practical consequences for the reputations of the appellants, extending well into the future. The court held that it was appropriate that a declaration be made in terms indicating that the appellants were denied natural justice, which may redress some of the harm done.[40]
[40] Ainsworth (582).
Like the power to grant certiorari and mandamus, the power to make a declaration is discretionary. Well-established grounds for refusing the grant of certiorari and mandamus include that 'a more convenient and satisfactory remedy exists' and that 'no useful result could ensue'.[41]
[41] R v Commonwealth Court of Conciliation and Arbitration; ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389, 400; Re Refugee Tribunal; ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 [54] - [57]; SZBYR v Minister for Immigration [2007] HCA 26; (2007) 81 ALJR 1190 [28].
The point was emphasised by Martin CJ, with whom Wheeler JA agreed, in Re Carey; ex parte Exclude Holdings Pty Ltd.[42] In that case the applicant had applied for certiorari to quash a decision of the Tribunal which could have been the subject of an appeal under s 105 of the SAT Act. Martin CJ expressed the view that only in exceptional circumstances should prerogative relief be sought instead of exercising the specific right of appeal for which Parliament had provided.[43] His Honour cited a number of authorities for the proposition that the courts will very rarely grant judicial review where there is an alternative remedy, such as a right of appeal.[44]
[42] Re Carey; ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501.
[43] Carey [6], [138] - [139].
[44] Carey [134] - [137].
As senior counsel for the appellant properly accepted,[45] considerations of utility and adequate alternative remedy also inform the discretion to grant declaratory relief in judicial review proceedings. Perder Investments Pty Ltd v Elmer[46] provides an example of the exercise of the discretion to refuse declaratory relief on the basis of futility. In that case the Full Court of the Federal Court refused to grant declaratory relief on discretionary grounds where there had been a failure to accord procedural fairness in refusing an application to transfer a licence which had expired by the time the judicial review application came to be determined. The appellant in that case argued that a declaration might assist it in an application for a new licence. The Full Court rejected this argument on the basis that it was apparent from the primary judge's reasons that the Minister's decision was invalid.[47]
[45] Appeal ts 12 - 13.
[46] Perder Investments Pty Ltd v Elmer (1991) 31 FCR 201.
[47] Perder 204 - 205.
In Federal Commissioner of Taxation v Futuris Corporation Ltd,[48] the plurality in the High Court recognised that the discretion to withhold relief in judicial review proceedings on the ground that there was an adequate alternative remedy also applied to declaratory relief. In Futuris, where the Federal Court had declared a taxation assessment to be invalid, it was held that the pendency of a statutory merits review of the assessment should have led to the refusal of declaratory relief in any event.
[48] Federal Commissioner of Taxation v Futuris Corporation Ltd [2008] HCA 32; (2008) 237 CLR 146 [10], [48].
Disposition
There is no challenge in this appeal to the primary judge's conclusion that the care placement cancellation decision was infected by jurisdictional error, in that the Department failed to seek the views of the child before making the care placement cancellation decision. In those circumstances, it is unnecessary for this court to say anything about the correctness of that aspect of the primary judge's decision. The only issue in this appeal is whether, having identified jurisdictional error, the primary judge erred by failing to make a declaration as to the unlawfulness of the care placement cancellation decision.
Senior counsel for the appellant accepted that the appellant's contention that the primary judge failed to consider whether to exercise her Honour's discretion to make a declaration is critical to the success of the appeal. If her Honour did consider the issue, and decided to exercise her discretion by declining to grant declaratory relief, then the principles governing appeals from discretionary decisions, discussed in House v The King,[49] would apply. As senior counsel properly accepted,[50] if the primary judge did consider whether to exercise her Honour's discretion to grant or refuse declaratory relief, there is no basis for contending that she made an error of the type identified in House v The King in the exercise of that discretion.
[49] House v The King (1936) 55 CLR 499, 504 - 505.
[50] Appeal ts 9.
In our view, the primary judge did consider whether a declaration should be refused on discretionary grounds. Her Honour refers to the relief sought, including declaratory relief.[51] While her Honour refers to the discretionary nature of certiorari,[52] the balance of her reasons do not indicate that she confined her attention to whether certiorari should be granted. To the contrary, the primary judge began her substantive consideration by noting the respondents' submissions that the 'remedies' (in the plural) sought by the appellant should be denied on discretionary grounds because the appellant had a suitable alternative to challenge the decision by way of the process set out in s 91 - s 95 of the Act.[53] The primary judge goes on to, in effect, accept that submission.[54] The only specific reference to certiorari in that consideration is in a recitation of the appellant's submission.[55] The primary judge concludes that the best interests of the child are served by declining to make 'any orders' as a consequence of the error of law identified.[56] The primary judge declines to exercise her discretion to make any orders consequential on the error of law.[57]
[51] Primary decision [148].
[52] Primary decision [149].
[53] Primary decision [151].
[54] Primary decision [152] - [156].
[55] Primary decision [158].
[56] Primary decision [163].
[57] Primary decision [164].
Although the primary judge referred only to the discretionary nature of certiorari at one point in her Honour's reasons,[58] the discretionary nature of declaratory relief is well established. The primary judge could not have failed to appreciate that the court had a discretion to refuse declaratory relief even where jurisdictional error is identified. Having found jurisdictional error to be established, and where it was not suggested that declaratory relief was not an available remedy, the only basis for refusing to grant declaratory relief was in the exercise of the court's discretion.
[58] Primary decision [149].
Taken as a whole, the primary judge's reasons demonstrate that her Honour did consider whether to exercise the court's discretion to refuse to grant declaratory relief notwithstanding that jurisdictional error was established. The primary judge decided to decline to exercise the court's discretion to make any orders as a consequence of the error of law which her Honour identified. The premise on which the appellant's appeal is based - that the primary judge failed to consider whether to exercise the court's discretion to grant declaratory relief - is not established. It follows that the appeal must be dismissed.
If (contrary to the above conclusion) the primary judge had failed to consider whether to grant declaratory relief, then it would be necessary for this court to consider how the discretion should be exercised. If the occasion had arisen for this court to consider for itself how the discretion should be exercised, we would have exercised the discretion to refuse to grant declaratory relief, having regard to the following considerations.
First, the decision made on 23 August 2018 to cancel the placement arrangement for the child to live with the appellant and substitute an arrangement for her to live with A and M has been overtaken by later events. In particular, a care planning decision was made on 7 October 2018 to place the child with W and R. A declaration as to the lawfulness of the care placement cancellation decision could therefore have no foreseeable consequence for the existing or future rights of any person.
Secondly, the matters referred to in the appellant's own submissions, summarised at [47] (1), (2) and (4) above, demonstrate that a declaration would have no practical effect on the child's ongoing care arrangements. It will not (subject to the matter referred to at [71] below) affect the Tribunal's consideration of the most appropriate care placement arrangements for the child for the future.
Thirdly, the provisions of the Act for review of care planning decisions by the CEO and the Tribunal provide a more satisfactory alternative avenue of relief for the appellant in relation to the placement of the child. The review proceedings currently before the Tribunal will focus on the substantive merits of the most appropriate placement arrangement for the child. That is in contrast to the judicial review proceedings which focus on the legal issue of whether a decision (now taken about 2 years ago) was infected by jurisdictional error. As the primary judge correctly held, it is in the best interests of the child that decisions concerning the placement of the child be based on the most up-to-date information. As was explained in Carey, the courts will very rarely grant judicial review where there is an alternative preferable or equally adequate remedy. There is no reason to depart from that general approach, and the best interests of the child count against any departure from that general approach, in the present case.
Fourthly, there is potential for the grant of declaratory relief to create confusion and unnecessary debate about the status of the proceedings currently pending in the Tribunal. The exception in s 19(5)(b) of the SAT Act clearly enabled the appellant to commence review proceedings in the Tribunal after instituting the judicial review proceedings. That was on the basis that the judicial review proceedings were dismissed, because the primary judge considered that a Tribunal proceeding was more appropriate. If this court were to substitute a declaration, then the exception in s 19(5)(b) of the SAT Act might not apply. The appellant submits that s 19 of the SAT Act would still not preclude the continuation of the review proceedings in the Tribunal, on the basis that different decisions were the subject of the judicial review and Tribunal proceedings. While there appears to us to be merit in that submission, the contrary view is not beyond argument.
Fifthly, there is no evidentiary basis for the appellant's assertion that the Department has misunderstood or failed to apply the primary judge's decision, or has failed to adjust its procedures to accord with the legal requirements identified by the primary judge. In any event, there is no basis for concluding that a declaration would have any greater effect in 'improving the Department's performance' than the primary judge's very clear statement in her Honour's reasons that the Department had failed to comply with the Act.
Orders
For the above reasons the appellant has not established that the primary judge failed to consider whether to exercise the court's discretion to grant declaratory relief. Even if that matter had been established, we would have exercised the discretion to refuse to grant declaratory relief for the reasons explained above. The appeal should therefore be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MT
Research Orderly to the Honourable Justice Mitchell8 SEPTEMBER 2020
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