ZA v Director-General, Community Services Directorate
[2024] ACTSC 347
•1 November 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | ZA v Director-General, Community Services Directorate |
Citation: | [2024] ACTSC 347 |
Hearing Date: | 1 November 2024 |
Decision Date: | 1 November 2024 |
Before: | Mossop J |
Decision: | See [50] |
Catchwords: | PRACTICE AND PROCEDURE –CARE AND PROTECTION PROCEEDINGS – Application by first respondent to dismiss appeal for want of prosecution – where appellant had appeared at only two of six occasions in which the proceedings had been listed and had not complied with procedural requirements relating to an index of appeal papers and transcripts of proceedings below – weight of application lessened by the appellant having taken steps to waive transcript application fees and having drafted an incomplete appeal index – court declined to dismiss proceedings and sought to regularise the appeal with further directions |
Legislation Cited: | Children and Young People Act 2008 (ACT), ss 467, 472 Court Procedures Rules 2006 (ACT), rr 5107, 5110, 5130, 5191 |
Cases Cited: | Commonwealth of Australia v Australasian Correctional Services Pty Ltd [2013] ACTSC 37 Weston v Publishing and Broadcasting Ltd [2011] NSWSC 433; 83 ACSR 206 ZA v Director-General, Community Services Directorate [2021] ACTSC 243 ZA v Director-General, Community Services Directorate (No 4) [2022] ACTCA 6 ZA v Director-General Community Service Directorate [2022] HCASL 145 |
Parties: | ZA ( First Appellant) ZO (Second Appellant) Director-General, Community Services Directorate ( First Respondent) Children’s Representative (Second Respondent) |
Representation: | Counsel Self-represented ( First Appellant) No appearance (Second Appellant) A Tonkin (First Respondent) E Sheppard (Second Respondent) |
| Solicitors Self-represented (First Appellant) No appearance (Second Appellant) ACT Government Solicitor ( First Respondent) Legal Aid ACT (Second Respondent) | |
File Number: | SCA 15 of 2024 |
Decision Under Appeal: | Court/Tribunal: Childrens Court of the ACT Before: Special Magistrate Christensen Date of Decision: 16 February 2024 Case Title: Application by ZA Court File Number(s): CP 159 of 2020 CP 160 of 2020 |
MOSSOP J:
Introduction
1․These reasons are concerned with an interlocutory application relating to an appeal from a decision of a special magistrate in the Childrens Court of the Australian Capital Territory on 16 February 2024.
2․In the proceedings the subject of this appeal, the appellant sought to revoke final care and protection orders made by the Childrens Court on 30 October 2017. Those orders granted the Director-General of the Community Services Directorate, the first respondent in this appeal, sole parental responsibility in respect of the appellant’s two children until her children reach the age of 18 years. Presently, the children are aged 17 and 16.
3․The appellant has appealed from all orders made by the magistrate.
4․The application before me is an application in proceeding filed by the first respondent on 11 October 2024 that seeks orders pursuant to r 5191(3) of the Court Procedures Rules 2006 (ACT) that the appellant’s appeal be dismissed for want of prosecution.
Procedural history
5․On 30 October 2017, orders were made in the Childrens Court granting the Director- General sole parental responsibility for the children until they are 18 years old.
6․On 20 December 2018, the appellant filed an application for revocation of those orders.
7․That application was ultimately dismissed by the Childrens Court on 20 December 2020.
8․A second application was filed on 4 November 2020, and on 11 November 2020 leave was not granted for this application to proceed.
9․The applicant appealed to this court in respect of both the final care and protection order of 30 October 2017 and the 11 November 2020 orders refusing leave to proceed. Those applications were refused by Loukas-Karlsson J on 9 August 2021: see ZA v Director‑General, Community Services Directorate [2021] ACTSC 243.
10․The appellant appealed from her Honour’s decision on 11 August 2021. The Court of Appeal, constituted by Elkaim ACJ, Anderson J and myself, allowed the appeal concerning the order of 11 November 2021 on the basis of an identified error in the Chief Magistrate’s reasons concerning the operation of s 467 of the Children and Young People Act 2008 (ACT). The application was then remitted to the Childrens Court: ZA v Director-General, Community Services Directorate (No 4) [2022] ACTCA 6.
11․The appellant subsequently sought special leave to appeal to the High Court from this decision of the Court of Appeal, which was refused on 19 September 2022: ZA v Director‑General Community Service Directorate [2022] HCASL 145.
12․On 23 September 2022, the proceedings were listed for hearing in the Childrens Court.
13․The remitted application for leave to apply to revoke or amend the orders was heard on 15-16 March 2023, 28 April 2023 and 22 June 2023.
14․On 16 February 2024, a special magistrate granted leave to the appellant to apply for revocation of the care and protection orders and for the amendment of those orders but then refused both applications.
15․The children subject to the proceedings, B and S, are 17 and 16 years old respectively. B will turn 18 in February 2025. S will turn 18 in May 2026. The fact that B will turn 18 in February 2025, prior to the date when any appeal would be heard and determined, strongly indicates that the appeal in relation to her lacks or will lack utility.
Application in proceeding of the Director-General dated 11 October 2024
16․The “want of prosecution” of an appeal is defined in r 5191 of the Court Procedures Rules. According to r 5191(2), the relevant rule applies if the appellant:
(a)has not done anything required to be done under these rules during a period of 3 months after the day the requirement arises; or
(b)otherwise has not prosecuted the appellant’s appeal with appropriate effort during a period of 3 months after the day the last step in the proceeding was taken.
17․If those circumstances are enlivened, r 5191(3) grants the Supreme Court a broad discretion to either:
(a)order that the appeal be dismissed for want of prosecution and confirm the order appealed from; or
(b)on its own initiative, set a time for the doing of a thing required to be done in relation to the appeal and—
(i) at the same time order that, if the appellant does not do the thing within the time, the appeal will be dismissed for want of prosecution and the order appealed from confirmed; or
(ii) if the appellant does not do the thing within the time—order that the appeal be dismissed for want of prosecution and confirm the order appealed from; or
(c)make any other order the Supreme Court considers just.
The present appeal
18․The decision of the Childrens Court was given on 16 February 2024.
19․The Notice of Appeal was filed on 14 March 2024. The fees for the filing of the appeal were waived. It emerged during the hearing of the application that part of that waiver application included a request for provision of transcript, presumably of the proceedings below. The form included “I ask that a free copy of transcript or audio recording be provided to me as payment of the fee would cause me hardship” and the relevant box was ticked by the appellant. However, there is no evidence that any decision was made on the application insofar as it related to the transcript, even though a decision was made to waive the filing fee. Nor is there any indication that the appellant was notified of the absence of determination of that request.
20․After some email correspondence between the parties and the court, an appeal index listing on 21 May 2024 was vacated. It was relisted for 28 May 2024.
21․On 28 May 2024, representatives of the Director-General and the children appeared but the appellant did not appear. The appeal index listing was adjourned until 11 June 2024.
22․There was further email correspondence between the appellant and the Supreme Court registry.
23․On 6 June 2024, the lawyers for the Director-General sent a letter referring to the matter being listed on 11 June 2024 and explaining the requirements of the Rules in relation to the progress of the appeal.
24․On 11 June 2024, lawyers for the Director-General and the children appeared. There was no appearance by the appellant. The proceedings were adjourned until 3 September 2024.
25․There was then further email correspondence between the appellant and the registry and the other parties. On 1 July, a letter was sent on behalf of the Director-General enclosing previous correspondence and indicating that an application to dismiss the appeal for want of prosecution may be filed.
26․On 3 September 2024, the appellant appeared before a Senior Deputy Registrar. The appellant was ordered to file and serve a draft index to the appeal papers by 13 September 2024, and a digital copy of the transcript by the same date. The Director‑General foreshadowed an application to strike out the appeal for want of prosecution. The appellant indicated that she intended to proceed with the appeal. The Senior Deputy Registrar told the parties that the Supreme Court would provide a copy of the Notice of Appeal to the Childrens Court as the appellant had not done so pursuant to r 5107.
27․A note on the bench sheet indicates as follows: “Registrar to make enquiries within the Court re location of transcript. 1A says she requested it with a fee waiver ‘months ago’ with no response.”
28․Following the hearing on 3 September 2024, a member of staff in the registry enquired from another member of staff whether or not there had been a request by the appellant for transcripts. The staff member recognised that it may have been with a “fee waiver” form. The reply on 9 September 2024 from a person in registry responsible for transcripts indicates that a transcript had been provided relating to a hearing in a matter on 5 July 2024 but made no reference to the 14 March 2024 request. The material on the file does not indicate what, if anything, the appellant was told about this communication.
29․A draft appeal index and transcript were not filed by 13 September 2024 in accordance with the orders of the court. However, it emerged during the hearing of the application that the appellant had sent a draft appeal index by email to the registry, but registry staff did not permit it to be filed by email.
30․The appellant failed to appear at the listing hearing before a Senior Deputy Registrar on 24 September 2024 or on 15 October 2024.
31․However, the appellant did appear before a Senior Deputy Registrar on 22 October 2024.
32․The appellant has not:
(a)served a copy of the filed Notice of Appeal on the Registrar of the Childrens Court, although this appears to have been remedied by a Senior Deputy Registrar of this court.
(b)obtained and served a transcript of the proceedings at first instance in accordance with the obligation to do so within 14 days of filing a Notice of Appeal: r 5110.
(c)prepared and filed a draft index of the appeal papers no later than three days before the settling of the appeal papers: r 5130;
(d)appeared on each occasion that the proceedings have been listed, the proceedings having been listed on six occasions (28 May, 11 June, 3 September, 24 September, 15 October and 22 October 2024) and the appellant having only attended on two occasions (3 September and 22 October 2024); or
(e)complied with orders made for the filing and service of the draft appeal index and transcripts.
33․However, notwithstanding the failure to comply with the requirements of the Rules and orders of the court in relation to the filing of the draft index and the transcript, the following points must be noted:
(a)The appellant had attempted from the commencement of her appeal to obtain a transcript of the Childrens Court proceedings without payment of the relevant fee. She was not informed that this request had not been determined by the Registrar. Nor was she informed that there might be any difficulty in such an application being determined by an officer of the Supreme Court if the relevant transcripts were transcripts of proceedings in the Childrens Court. In any event, the Director-General, in fact, had obtained the transcripts of the proceedings but appears not to have informed the court or the appellant of that fact at any stage up until the hearing of the present application.
(b)The appellant had attempted to file an appeal index shortly after the close of business on 13 September 2024 but sought to do so electronically in circumstances where that was not permitted. The appeal index was incomplete. However, it did represent some attempt to comply with the court’s orders.
Approach
34․The submissions made on behalf of the Director-General refer to the decision in Commonwealth of Australiav Australasian Correctional Services Pty Ltd [2013] ACTSC 37, which adopted with approval the explanation of the considerations to be taken into account when considering an application to dismiss proceedings for want of prosecution referred to in Weston v Publishing and Broadcasting Ltd [2011] NSWSC 433; 83 ACSR 206. Those included:
(a)the discretion should be exercised only in a clear case where it is manifestly warranted;
(b)any explanation offered by the plaintiff for the delay in proceedings;
(c)personal blamelessness on the part of the plaintiff is relevant;
(d)a defendant who takes no steps to secure progress of the proceedings or to activate an apparently inactive plaintiff or who stands by in the hope that the passage of time will ensure the quiet death of the proceedings or that the longer delay will strengthen the case for striking out, runs the risk that that very behaviour will operate to his, her or its disadvantage;
(e)delay between the date that the cause of action arose and the date of commencement of the proceedings may be a relevant factor;
(f)the onus lies on the defendant to establish any prejudice upon which reliance is placed;
(g)prejudice to a defendant caused by delay has to be balanced against prejudice to a plaintiff deprived of an otherwise valid claim;
(h)what the defendant has or has not done by way of preparation for trial may be a factor;
(i)the plaintiff’s prospects of success are a relevant factor; and
(j)the exercise of discretion to strike out should not incorporate any element of punishment of a tardy plaintiff or excluding one who may appear to have some unworthy characteristics.
35․These are a useful range of considerations. They need to be adapted to circumstances where an appeal is sought to be terminated. The emphasis of different factors will vary somewhat in relation to appeals, where the appellant has already had the benefit of a judicial determination. That may result in somewhat less reluctance to terminate the proceedings.
Consideration
36․The steps required to be taken by the appellant have not been taken, namely, the filing of the draft appeal index and the transcripts. Notwithstanding the mitigating circumstances that exist, as a consequence r 5191 applies. The issue is whether or not an order should be made and, if so, what order.
37․The Notice of Appeal contains 12 grounds of appeal. The first six of those appeared to challenge the correctness of orders made on 30 October 2017, 9 August 2021 and 4 March 2022 and, it may be inferred, the orders on 16 February 2024, on the basis that the children had never been the subject of abuse, neglect or significant harm in the period from 9 December 2016 to 7 March 2017. That contention is also reflected to some extent in grounds 7, 10, and 11. Having regard to the passage of time, the challenge to those findings is unlikely to be of central relevance to whether or not the orders should have been amended or discharged at the time of the February 2024 orders. I do not accept the submissions made on behalf of the Director-General that the form of those grounds of appeal is such that they can only be interpreted as impermissibly seeking to attack the making of the 2017 order and do not attack the decision to not revoke it. Two grounds (grounds 7 and 8) assert that the magistrate failed to take into account the evidence concerning harm to the children by ACT Child and Youth Protection Services (CYPS) and its staff and carers. Ground 9 asserts a failure to take into account the wishes of the children. Ground 12 asserts that the magistrate failed to take into account the right of the children to participate in all court proceedings.
38․The magistrate’s reasons were extensive. They were provided in writing. They totalled 328 paragraphs. They involved a detailed consideration of the evidence. The magistrate’s findings included (at [214]):
I am satisfied on the balance of probabilities that [the appellant] suffers from a mental illness, being a psychotic illness that is most likely a delusional disorder (persecutory subtype).
39․They also include the finding that (at [305]):
There is no acknowledgement by [the appellant] that she has ever suffered, or currently suffers from, any mental ill health. There has been no engagement necessary for treatment of that illness, and accordingly, no insight into how to best care for the children.
40․These findings are not challenged in the Notice of Appeal.
41․Ultimately, for the purposes of s 472 of the Children and Young People Act, the magistrate was not satisfied that the children would not be in need of care and protection if the orders were revoked. She was not satisfied that the orders could not be administered effectively because a child or the children persistently refused to comply with the residence provision of the order. She was not satisfied that it was otherwise in the best interests of a child or the children to revoke the order or any provisions of it. For the purposes of amendment, the magistrate did not consider that the amendment proposed would be in the best interests of a child or the children.
42․The merits of any appeal can only be considered in a tentative way at a high level of generality. Having regard to the comprehensive consideration of the evidence by the magistrate, the need to establish error for the purposes of any appeal, and having regard to the grounds of appeal, it cannot be said that the grounds of appeal are strong. So far as the elder child is concerned, the appeal almost certainly lacks utility because it will not be able to be heard and determined prior to that child turning 18.
43․The Notice of Appeal indicated that the appellant wants to present her case in writing and not participate in person but rather by written submissions; however, she also seeks to insist upon her elder daughter attending the proceedings in person, which would require an oral hearing.
44․The strength of the Director-General’s claim that the proceeding should be dismissed for want of prosecution was substantially lessened by the circumstances, unknown to the Director-General:
(a)that the appellant had applied for the provision of a free transcript but that had not been determined when it was made in March 2024 and was not reconsidered when the issue was raised again by the appellant in September 2024;
(b)the appellant had attempted to file an, admittedly inadequate, appeal index in September 2024 but had attempted to do so electronically without leave for that to occur.
45․The contentions of the Director-General are also undermined by the fact that, unlike the appellant, the Director-General has a copy of the transcript, which the appellant was required to file, but that fact does not appear to have been disclosed to the appellant or the court until today.
46․Whilst I accept that there have been failures on the part of the appellant to attend and failures to comply with the requirements of the Rules and orders of the court, the appellant wishes to proceed with the appeal and has been taking steps to allow the proceedings to progress. The fact that she is unrepresented and less able to navigate the requirements of the Rules and the registry is an explanation for her lack of progress even if it is not an excuse.
47․For those reasons, I do not consider that it is an appropriate case in which to either dismiss the appeal for want of prosecution or make guillotine orders. The circumstances of this case do not justify the taking of such grave steps. The fact that the magistrate’s reasons are comprehensive and the grounds of appeal are not of obvious merit are not factors of such significance that they would indicate that the power to dismiss for want of prosecution should be exercised. Similarly, the pending lack of utility in relation to the elder child is a matter of significance, but not one which indicates that the power to dismiss under r 5191 should be exercised. Had the appellant not demonstrated some attempts to comply with the requirements of the Rules and the orders of the court then the pending lack of utility in B’s appeal would be a significant matter supporting the dismissal of the proceedings. However, in circumstances where the case for dismissal on the grounds of want of prosecution is a weak one, the pending lack of utility of the appeal should not change it into a strong one. It would be wrong under the guise of dismissing for want of prosecution, to dismiss the case because it will become moot prior to its determination.
48․If, as appears likely, the appellant declines to abandon the appeal in relation to B, then a further application to dismiss the proceeding on the grounds of its lack of utility will be required.
49․Even though I will not make orders dismissing the appeal or guillotine orders, it does appear to me to be important to make directions to ensure that the appeal progresses. That could be done by treating the application in a manner similar to criminal appeals from the Magistrates Court and dispensing with the requirement for appeal books. In a case such as the present, that dispensation is obviously less desirable than having proper appeal books, but in circumstances where the appellant is unrepresented and the appeal needs to be moved on, it is a course which is available. I will hear the parties as to the directions that I should make. The bench sheet of 3 September 2024 indicated that enquiries were intended to be made of the Childrens Court about access to the Childrens Court file and, hence, to its exhibits. If the transcripts and the exhibits are put before the court, then the court should be in a position, with the benefit of written submissions from the parties, to determine the appeal.
[The parties were heard as to the form of orders and the following orders (as subsequently amended under the slip rule) were made]
50․The orders of the court are:
1.Dispense with the requirements of the rules in relation to the filing of the appeal index and transcript of proceedings in the Childrens Court.
2.Direct the Director-General and the children’s representative to serve on each other party and file an electronic copy of the transcript of proceedings in the Childrens Court in their possession in proceedings CP 159/2020 or CP 160/2020 on 17 February, 15 and 16 March, 24 March, 28 April, 11 May and 22 June 2023 and the Director-General is to file a list of all exhibits admitted into evidence in that court by 15 November 2024.
3.Direct the Registrar to request the Registrar of the Childrens Court to provide to the Supreme Court the exhibits admitted into evidence in the Childrens Court and a copy of the court file in proceedings CP 159/2020 and CP 160/2020.
4.Direct that the appeal proceedings be listed before the Registrar for directions at 2:30pm on 19 November 2024 at which time a hearing date is to be set for the appeal unless all parties consent to the appeal to be determined on the basis of written submissions and without an oral hearing.
5.Direct that the appellant file and serve written submissions limited to not more than 20 pages on a date set by the Registrar.
6.Direct that the Director-General file and the children’s representative file and serve written submissions limited to not more than 20 pages by a date set by the Registrar.
7.Direct that the appellant file and serve any written submissions in reply limited to not more than 15 pages by a date set by the Registrar.
8.Subject to any further order of the Registrar, direct that the written submissions filed by the appellant may be filed by sending them by email to the Registry so long as they are carbon copied to the other parties and that if filed in this manner, stamped copies of the appellant’s written submissions are not required to be served.
| I certify that the preceding fifty [50] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop Associate: Date: 13 November 2024 |
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