ZA v Director-General, Community Services Directorate - [2024] ACTSC 347

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] ACTSC 347
Decision Date: 1 November 2024

CaseChat Overview and Summary

The case of ZA v Director-General, Community Services Directorate involved an appeal against care and protection orders concerning a child. The Director-General sought to dismiss the appeal on the grounds that the appellant, ZA, had failed to prosecute the appeal diligently. This failure was evidenced by ZA's attendance at only two of the six scheduled hearings and non-compliance with procedural requirements such as the preparation of an index of appeal papers and transcripts of the proceedings below. Despite ZA's efforts to mitigate the situation, such as waiving transcript application fees and drafting an incomplete appeal index, the Director-General argued that the appeal should be dismissed for want of prosecution.

The primary legal issue before the court was whether the appellant's failure to prosecute the appeal with due diligence justified the dismissal of the proceedings. The court had to balance the appellant's rights to pursue an appeal against the need to ensure that legal proceedings are conducted efficiently and effectively. The court considered the principles of procedural fairness and the overarching objective of achieving just outcomes in care and protection matters. It was also necessary to determine whether the delay and non-compliance were significant enough to warrant dismissal or if the appeal could be regularised through additional directions.

In evaluating the application, the court noted that the appellant had taken some steps to address the procedural shortcomings, albeit incompletely. The court acknowledged that the appellant's presence at only two hearings and failure to meet procedural requirements did impact the progress of the appeal. However, the court also recognised the appellant's efforts to mitigate the delays and non-compliance. Ultimately, the court decided not to dismiss the appeal outright but instead sought to regularise the appeal process by providing further directions to the appellant. This approach aimed to ensure that the appeal could proceed while addressing the procedural issues that had arisen.

The court's final orders included directions for the appellant to complete the preparation of the appeal index and transcripts, and to appear at a further hearing to discuss the progress of the appeal. These orders were designed to facilitate the continuation of the appeal while ensuring that both parties could proceed with the matter in an orderly fashion. The court emphasised the importance of adhering to procedural requirements to avoid further delays and to uphold the efficiency of the legal process.

Orders

Orders of the court

See [50]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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