Secretary, Department of Family and Community Services v Burton (No 2)

The issue before the Court is whether it should, on the application of the first defendant, Mr Paul Robert Burton, dismiss the proceedings brought by the plaintiff, who is described in the Court's file as the Secretary, Department of Family and Community Services (Secretary).

Mr Burton made his application orally and without notice on 12 August 2019, when the proceedings had been relisted for directions at the request of Mr Burton. Mr Burton is a litigant in person, as is the second defendant, Mr Andrew Katelaris (who prefers to call himself Dr Katelaris).

Notwithstanding the irregular nature of the application, as Mr Burton was representing himself, I permitted him to make oral submissions in support of his application and to provide some written submissions in support.

The Secretary was represented by counsel, who obviously was at a disadvantage as her client had not been given notice of Mr Burton's application. Nonetheless, counsel made oral submissions in response to those made by Mr Burton, and, by leave, delivered further written submissions dated 2 September 2019.

I also permitted Mr Burton to make written submissions in reply, which were filed on 9 September 2019.

These proceedings were commenced by the Secretary by summons filed on 14 July 2017.

For the purposes of this judgment, it is sufficient to record that the proceedings have arisen out of the circumstances in which the Secretary caused a child, who has been given the pseudonym "Christopher", to be taken into care from his parents and ultimately placed under the parental responsibility of the Minister for Family and Community Services, by order of the Children's Court of New South Wales. Christopher was removed from his parents in May 2017, pursuant to an order issued under s 43(1) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Care Act). The order was issued by the Secretary on the grounds that Christopher was "at immediate risk of serious harm" by reason that he was suffering from medical neglect, which included malnourishment, among other disabilities.

In the summons, the Secretary sought, in substance, an injunction pursuant to s 66 of the Supreme Court Act 1970 (NSW), or in the alternative pursuant to the Court's parens patriae jurisdiction, restraining the defendants from publishing, by any means, information tending to reveal the identity of Christopher, any caseworker or “Manager Casework” employed by the Department, and treating medical paediatric and child protection team staff, or information that comprises evidence, or information about evidence, given in proceedings before the Children's Court.

The Secretary also sought an injunction restraining the defendants from breaching s 105 of the Care Act.

On 18 July 2017, following an interlocutory hearing on a motion filed by the Secretary, Rein J, as duty judge, made certain interlocutory orders that restrained the defendants from publishing the name or images of Christopher, or his parents or medical practitioners and other professionals providing services to Christopher, and the Children's Court proceedings concerning Christopher. Orders were also made requiring the defendants to remove Facebook and other posts containing certain information. The defendants were also ordered to remove or destroy images of and the name of Christopher in their possession.

The proceedings were heard by me on 29 and 30 November 2017 and 1 and 6 December 2017, but the hearing did not finish in the time allowed. Certain steps had to be taken by the Secretary after the adjournment of the proceedings, and in due course it would have been necessary for the Court to make time available for the parties to make submissions concerning whether or not the final relief sought by the Secretary should be granted.

At the end of the hearing, the Secretary sought alternative interlocutory orders to those that had earlier been granted by Rein J. Any such orders would not have had final effect, but if made would only control the situation until after the parties had an opportunity to make their submissions and the Court could consider its final judgment.

On 23 March 2018, I delivered reasons for judgment on the issue of what alternative interlocutory relief should be granted to the Secretary: Secretary, Department of Family and Community Services v Burton [2018] NSWSC 371.

It is sufficient to record that, for the reasons given in some detail in the judgment, I invited the Secretary to consider the position and to submit revised short minutes of order to the Court to those that had originally been provided during the course of the hearing.

Following further directions hearings, on 3 August 2018 I vacated part of the orders made by Rein J on 18 July 2017 and made substituted orders.

As explained, the substitute orders were also interlocutory orders that, by their terms, would only apply until the time that the Court gave final judgment on the Secretary's claim. It was, and remains, possible that, when the Court gives its final judgment, the defendants will be successful, and the Court will not make any permanent injunctions against the defendants.

It may be noted for completeness that, on 20 February 2019, the Court of Appeal, constituted by Gleeson and McCallum JJA, heard an application by Mr Burton for leave to appeal from the interlocutory orders that I made on 3 August 2018. By decision made on 6 March 2019, the Court of Appeal dismissed Mr Burton's summons seeking leave to appeal with costs: Burton v Secretary, Department of Family and Community Services [2019] NSWCA 21.

In the meantime, on 21 December 2017, Mr Burton and Mr Katelaris were charged with offences under s 16(1) of the Court Suppression and Non-publication Orders Act 2010 (NSW) (Court Suppression Act) and offences under s 105(2) of the Care Act.

As McCallum JA recorded at [17] of her reasons for judgment in the Court of Appeal, as a result of a concern raised by me about the consequences of the commencement of the criminal prosecution of Mr Burton and Mr Katelaris, before they had been given an opportunity to make submissions in the present proceedings, there was scope for prejudice to their defences of the criminal proceedings if they were required to make submissions in these civil proceedings before the criminal proceedings had been dealt with. In short, as both Mr Burton and Mr Katelaris were representing themselves, they might make submissions in these proceedings that prejudiced their defence of the criminal proceedings; perhaps even without appreciating that they were doing so. Alternatively, if they were conscious of the desirability of preserving their privilege against self-incrimination, they may be hamstrung in the manner in which they could effectively make submissions in these proceedings.

The Secretary accepted that position, and the present situation is that these civil proceedings have been indefinitely informally stayed part-heard, pending the completion of the criminal prosecutions against Mr Burton and Mr Katelaris. So far as these proceedings are concerned, effectively nothing has changed and the proceedings are subject to an indefinite stay.

It was in this context that Mr Burton made his application on 12 August 2019 for an order dismissing the Secretary's proceedings.

I have read the submissions made by Mr Burton in support of his application. Mr Burton may not, as a lay person representing himself, appreciate that the Court cannot on an application such as the present act upon contentious and unsubstantiated assertions of fact and opinion made to the Court by any party. I propose to limit my consideration to the matters that are strictly relevant to the proper determination of the present application. It should not be taken from the fact that I will not deal with all of the submissions made by Mr Burton that I have not read them.

I am satisfied that Mr Burton’s application for the summary dismissal of the Secretary’s case should itself be dismissed, and I will do so.

I agree with the proposition put by counsel for the Secretary that Mr Burton in substance appears to have relied upon four arguments.

Mr Burton’s first argument is that the proceedings must be dismissed because there is no longer a plaintiff in existence to prosecute them.

The basis of Mr Burton’s claim is that the Administrative Arrangements (Administrative Changes – Public Service Agencies) Order 2019 (the Administrative Order) had the effect that the plaintiff, the Secretary of the Department of Family and Community Services, was abolished on 1 July 2019.

However, as submitted by the Secretary, the Administrative Order, which came into force on 2 April 2019, established a new department called the Department of Family and Community Services and Justice, and abolished the Department of Family and Community Services: clause 11. The Administrative Order has been amended on a number of occasions since it was first made, and relevantly the new department is now to be known as the Department of Communities and Justice pursuant to clause 6. One effect of the Administrative Order, as explained in detail in pars 7 and 8 of the Secretary’s submissions, is that a transitional regime was implemented that relevantly had the effect that the Secretary is taken to have been appointed as the Secretary of the Department of Communities and Justice, and to hold office subject to the relevant legislation governing the appointment of state government officers. Further, any reference in “any document” to the Department of Family and Community Services is to be construed as a reference to the Department of Communities and Justice: see principally clause 11. “Document” is defined in clause 3 to mean “any Act or statutory or other instrument, or any contract or agreement”.

The relevance of these provisions is that, although there was a reconstruction in respect of the agency dealing with child care matters, the transitional provisions effect a seamless arrangement whereby all original references to the Secretary and the Department in any “Document”, which includes the Care Act, will be taken to be a reference to the Secretary in respect of the newly-created Department. For all practical purposes relevant to the present application, all that has happened is that there have been name changes.

Consequently, the Secretary who commenced these proceedings has continued to be the plaintiff, and remains so, and is capable of prosecuting these proceedings, and although the original Department has been abolished and replaced by a new one, the Secretary, through the Secretary’s office, has continued.

Furthermore, as the Secretary has argued, s 30 of the Interpretation Act 1987 (NSW) has the effect that the Administrative Order did not affect the validity of any step taken by the Secretary of the Department of Family and Community Services in relation to the care of Christopher or the undertaking of these proceedings in the period up to 1 July 2019.

Under s 50D of the Constitution Act 1902 (NSW), the Governor was authorised to establish or abolish any Public Service agency and "the Public Service agency to which the Governor transfers all parts of the abolished agency (or all parts other than specified parts) is taken for all purposes to be the successor of the abolished agency". Consequently, the Department of Communities and Justice is in law the successor of the Department of Family and Community Services. That has the effect that everything done by the former Department is treated in law as something done by the new Department, and the new Department can carry on what the old Department had undertaken. Finally, in a similar vein, the Secretary of the present Department is in law the successor to the Secretary of the original Department.

With respect, Mr Burton’s submission on page 9 and following of his submissions in reply, that due to the separation of powers and because this State is a democracy under the Westminster system, the Parliament cannot pass laws that effectively overrule the courts in relation to the parties in a case is the complete opposite of the true legal position. At least in relation to Mr Burton’s first argument in this case, the power of Parliament, including laws made by delegation of the Parliament, is paramount.

The second argument put by Mr Burton is that the Secretary has abandoned these proceedings and the right to prosecute them has been waived. The basis of this argument appears to be the assertion that the Secretary was required to relist the matter before me for some purpose after the Court of Appeal handed down its decision dismissing Mr Burton’s application for leave to appeal, but has not done so.

I am not clear as to why Mr Burton has formed the understanding that the Secretary had an obligation to relist the matter following the determination of the application to the Court of Appeal. At present, these civil proceedings are stayed until, one way or another, all of the criminal proceedings have been dealt with, at least to the stage of the completion of any criminal trial that is to take place. There is nothing for the Secretary, or for the defendants for that matter, to do until that time arrives.

Further, the right of the plaintiff to prosecute civil proceedings is not lost on the basis of abandonment. If a plaintiff does not prosecute the case with due expedition and diligence, the plaintiff may make itself liable to the making of an order dismissing the claim for want of prosecution. De facto abandonment by the plaintiff may form a proper basis for the defendant to obtain an order for dismissal for want of prosecution. However, the defendant must make such an application. In cases that are not extreme, the plaintiff is likely to be given a further opportunity to prosecute the case expeditiously. However, the occasion for the Court to dismiss a plaintiff’s claim for want of prosecution can only arise where the plaintiff has not taken steps that proper prosecution would reasonably require the plaintiff to take. As the proceedings are effectively stayed, there is nothing presently required of the Secretary that could put the Secretary in jeopardy of the proceedings being dismissed.

Mr Burton’s third ground for his application for the dismissal of the Secretary’s claim is that the Children’s Court proceedings concerning Christopher have now been completed, and in any event the orders made by the Children’s Court under the Court Suppression Act were invalid.

It is true that the Children’s Court proceedings have been completed. As I understand it, permission has been given to Christopher’s parents to take him to Queensland, which was the original State of residence of Christopher and his family. The Secretary has submitted that the Department has an on-going role in relation to the care and protection of Christopher, and the nature of that role will be the subject of evidence in due course.

Even though the evidence in these proceedings has formally been completed, there may be unexpected consequences of the stay of the proceedings, which may affect the proper determination of the Secretary’s claim when the proceedings recommence, after the stay is lifted by the determination of the criminal prosecutions. One such matter is the conclusion of the Children’s Court proceedings involving Christopher, and the change of his care arrangements whereby to some degree he may now be within the jurisdiction of the Queensland equivalent of the Department.

To some extent, the orders originally sought by the Secretary were in aid of the preservation of the proceedings before the Children’s Court, but the relief was not limited to that objective.

It is possible that the Court will have to give leave to all of the parties to tender additional evidence, if they wish to contend that, as a result of the passage of time, circumstances have changed, so that the Court would not be warranted in deciding the Secretary’s claim for relief solely on the basis of the existing evidence before the Court. It is possible that the existing evidence will, in some respects, be found to be out of date, or require supplementation.

That is a matter for the future. It can only be dealt with when circumstances are known as they may be after the time when the criminal prosecutions have been completed.

It may be necessary for the Court to consider all relevant ramifications of any changes in circumstances, including the completion of the Children’s Court proceedings and the relocation of Christopher and his family, and it is premature at this time for the Court to form any view as to the significance of changes that have occurred to date.

That some changes have occurred does not form a proper basis for the Court to summarily dismiss the Secretary’s claim at this time.

I note that the decision of the Court of Appeal on an application by Mr Burton to appeal from a decision of Hatzistergos DCJ in the District Court of New South Wales summarily dismissing a claim by Mr Burton against the Office of the Director of Public Prosecutions for damages for the tort of collateral abuse of process, in respect of the criminal prosecution concerning the alleged breach by Mr Burton of three of the suppression orders made under the Court Suppression Act, was pending at the time the parties made their submissions on the present application. The Court of Appeal has now delivered its judgment: Burton v Office of the Director of Public Prosecutions [2019] NSWCA 245. Certain of the observations made by the Court in that judgment may have significance to the issue of whether the suppression orders were valid. That issue was not directly the subject of the Court of Appeal’s judgment.

As the parties to the present application have not made any submissions concerning the significance of the Court of Appeal’s judgment, and as it does not appear to me in any event that the reasons provide a basis for entirely dismissing the Secretary’s claim in these proceedings, I will not say anything more about those reasons.

Finally, Mr Burton submitted that there is no reason for the Supreme Court in its civil jurisdiction to continue to be involved when the alleged wrongful conduct of the defendants is being dealt with by means of the criminal prosecutions.

The answer to this argument is that the civil and the criminal cases serve different purposes, and in principle the existence of either does not obviate the justification for the other.

It is possible that the outcome of the criminal proceedings may be material to how these present civil proceedings should be dealt with. The Court has no basis to anticipate that outcome, and, as with all other aspects of these proceedings, it must abide the continuation of the stay of the proceedings.

I therefore order that the application made orally by Mr Burton on 12 August 2019 is dismissed.

I note the submission made on behalf of the Secretary that the costs of the application should be reserved. Accordingly, I reserve the costs of Mr Burton’s application.