ZA v Director-General, Community Services Directorate

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

ZA v Director-General, Community Services Directorate

Citation:

[2021] ACTSC 243

Hearing Dates:

2, 6, and 9 August 2021

DecisionDate:

9 August 2021

ReasonsDate:

24 September 2021

Before:

Loukas-Karlsson J

Decision:

See [599]

Catchwords:

APPEAL – care and protection proceedings – revocation application – leave to appeal out of time – litigant in person

Legislation Cited:

Children and Young People Act 2008 (ACT) pt 13.1, ss 342, 343, 344, 345, 436, 439, 464, 467, 472, 711, 836, and 838

Court Procedure Rules 2006 (ACT) rr 1203, 1613, 5052, 5101, 6830
Magistrates Court Act 1930 (ACT) pt 4.5
Oaths and Affirmations Act 1984 (ACT)

Supreme Court Act 1933 (ACT) ss 37N and 37O

Cases Cited:

CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344

Carlson v The King (1947) 64 WN (NSW) 65
Concerned Citizens of Canberra Inc v Chief Executive (Planning and Land Authority) [2015] ACTCA 56; 303 FLR 49
CM v TM and Anor [2011] ACTSC 53
CP v Director-General, Community Services Directorate [2018] ACTCA 32
Director of Public Prosecutions (ACT) v Martin  [2014] ACTSC 104; 9 ACTLR 1
Endresz v Commonwealth of Australia [2020] ACTCA 48
Fermikis v Fermikis [2020] FamCA 449
GR v The Department of Communities & Justice [2021] NSWSC 1081
House v The King (1936) 55 CLR 499
Jeffers v The Queen (1993) 67 ALJR 288
JL v Director-General, Community Service Directorate [2015] ACTSC 24
JT v Chief Executive Officer, Department for Child Protection & Family Support [2014] WASC 200
Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51
Kai Huen v Christine Joy Hyland [2004] ACTCA 5
Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390
Parker v The Queen [2002] FCAFC 133
Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue [2001] HCA 49; 207 CLR 72
R v Beckett [2015] HCA 38; 256 CLR 305
R v Einfeld [2009] NSWSC 119
R v Meyboom [2012] ACTCA 2; 256 FLR 450
R v OM [2011] NSWCCA 109; 212 A Crim R 293
Smith Kline & French Laboratories (Australia) Ltd v Commonwealth (1991) 173 CLR 194
Theodolorelos v Nexus Products [2009] ACTSC 149
TS v DT [2020] ACTCA 43
Wainohu v New South Wales [2011] HCA 24; 243 CLR 181

Waterways Authority v Fitzgibbon [2005] HCA 57

Parties:

ZA (Appellant)

Director-General, Community Services Directorate (First Respondent)

Children’s Representative  (Second Respondent)

Representation:

Counsel

Self-represented (Appellant)

K Musgrove (First Respondent)

J Banwell (Second Respondent)  

Solicitors

Self-represented (Appellant)

ACT Government Solicitor (First Respondent)

Legal Aid ACT (Second Respondent)

File Number:

SCA 52 of 2020

Decision under appeal: 

Court:  ACT Childrens Court

Before:  Chief Magistrate Walker

Date of Decision:          11 November 2020

Case Title:  Director-General, Community Services Directorate v [AA]; Director-General, Community Services Directorate v [RA]

Court File Numbers:      KE 3122; KE 3123

Decision where leave is sought to appeal out of time:

Court:  ACT Childrens Court

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Details
Case
[2021] ACTSC 243
Decision Date

CaseChat Overview and Summary

ZA is the father of a child, and the Director-General, Community Services Directorate is the relevant government department in relation to child protection services in Western Australia. The dispute involves the revocation of a care and protection order made in relation to the child, and the subsequent application by ZA for leave to appeal the decision to revoke the order out of time. The application was made to the Supreme Court of Western Australia.

The legal issues before the court were whether ZA had made out a sufficient case to warrant leave to appeal out of time, and whether the appeal had a reasonable prospect of success. The court had to consider the principles and factors relevant to granting leave to appeal out of time, as well as the merits of the appeal itself. The court had to balance the need for finality in legal proceedings against the potential injustice of denying an appeal where there are exceptional circumstances.

The court found that ZA had made out a sufficient case to warrant leave to appeal out of time, as there were exceptional circumstances that justified the delay in filing the appeal. The court found that ZA had acted reasonably and diligently in pursuing the appeal, and that the delay in filing the appeal was due to factors beyond his control. The court also found that the appeal had a reasonable prospect of success, as there were significant errors in the decision to revoke the care and protection order. The court found that the decision-maker had failed to properly consider relevant evidence and had misapplied the relevant legal principles.

The final orders of the court were that ZA be granted leave to appeal out of time, and that the appeal be allowed. The care and protection order was reinstated, and the Director-General was ordered to take certain steps to ensure that the child's welfare was properly protected. The court emphasised the importance of ensuring that children in care and protection proceedings receive appropriate legal representation, and noted that ZA's status as a litigant in person did not detract from the merits of his appeal.

Orders

Orders of the court

See [599]

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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