JE v Secretary, Department of Communities and Justice (No 2)

1. [1]

   MEAGHER JA: I agree with Leeming JA that the amended summons should be dismissed. In addition to agreeing with his Honour's reasons for making that order, I agree with his observations appearing at [12]ff.

2. [2]

   GLEESON JA: I agree with Leeming JA.

3. [3]

   LEEMING JA: The background to this litigation is contained in this Court’s earlier decisions in JE v Secretary, Department of Family and Community Services [2019] NSWCA 162 and JE v Secretary, Department of Communities and Justice [2020] NSWCA 123. It is not necessary to reproduce most of those details in these reasons, which adopt the same pseudonyms as have previously been used, in accordance with orders made on 6 April 2020.

4. [4]

   The plaintiff JE is the mother of two daughters, referred to by the pseudonyms Michelle and Dora. Officers of the Department of Family and Community Services removed both daughters from her care in 2012. The Children’s Court allocated parental responsibility for the children to persons other than JE. On 22 August 2018, the District Court dismissed JE’s appeal pursuant to s 91 of the Children and Young Person’s (Care and Protection) Act 1998 (NSW). However, this Court in 2019 remitted to the District Court JE’s appeal concerning JE’s daughter, Michelle. Accordingly, there was, last October, a hearing of some six days in the District Court constituted by Robison DCJ followed by an ex tempore judgment delivered on 22 October 2019. His Honour concluded as follows:

5. [5]

   No appeal lies from the decision of the District Court dismissing an appeal from the Children’s Court. Accordingly, JE filed a summons in this Court’s supervisory jurisdiction. When the matter came on for hearing, she moved on an amended summons seeking various orders but she confirmed that in substance she sought to quash the orders of the District Court and have the matter remitted for a rehearing of her appeal. There was no dispute that, in order to succeed, it was necessary for JE to establish either jurisdictional error or error of law on the face of the record (including the reasons).

6. [6]

   The decision of the District Court turned on a quintessentially factual matter – the fact that Michelle, who is now 17, wishes to remain living with her father as she has for some years now and attending her school (where by all accounts, she is thriving). According to the reasons, the attitude of Michelle was established by the evidence of a Senior Child Protection caseworker who had spoken with her, reports from her teachers at school, and the absence of any reports to the Department concerning neglect or harm by her father. Michelle did not herself give testimonial evidence and her mother did not have the chance to ask her any questions. As JE said:

7. [7]

   JE maintained that although she had been unwell formerly, she had recovered, and loved her child and was greatly distressed at having been separated from her. She was dissatisfied with the outcome and says it involves procedural unfairness and error of law, without otherwise identifying how that is so. It must be said, as all courts have said in the course of this litigation, that much of JE’s written and oral submissions is difficult to follow. She accepts the need to establish jurisdictional error or error of law on the face of the record, but then relies upon all aspects of her dissatisfaction with the outcome of proceedings and styles them as either procedural unfairness or error of law. For example, she said:

8. [8]

   As the presiding judge made clear at the hearing, there is no question but that JE loves her daughter and is bringing this, the most recent proceeding, in the sincere wish to resume contact with her. However, that does not alter the fact that this Court may only intervene if there is shown to have been an error of law on the face of the record or a jurisdictional error.

9. [9]

   In a case such as this, it is appropriate for the Court to review, carefully, the whole of the materials which have been placed before it. That included written submissions and affidavits of JE, and the 29 page judgment of the District Court. I have done so. There is nothing that suggests any error of law, and there is nothing which indicates any procedural unfairness. To the contrary, the primary judge was alert to his obligation to accord procedural fairness, saying the following:

10. [10]

    At the conclusion of her oral submissions, I asked JE how she said that the proceedings had been procedurally unfair to her:

11. [11]

    Having regard to all of the evidence of what occurred in the District Court, and all that was said in writing and orally by JE, no basis to set aside the judgment of the District Court has been made out. It is unnecessary to address a further difficulty, which is that the daughter will turn 18 in some 10 months, following which so far as I can see the orders which JE seeks to challenge will cease to have effect.

Other matters

1. [12]

   Michelle was a necessary party to the summons. In light of her age, and the seeming commonality of interest with the Secretary, I made an order dispensing with the need for a tutor to be appointed for her in June 2020: JE v Secretary, Department of Communities and Justice [2020] NSWCA 123. An issue arose at that hearing concerning Michelle’s representation when the summons was listed for final hearing, concerning the precise role that Michelle’s representative would play, and the more general question as to the appointment of tutors or independent legal representatives for children and young persons who are necessary parties to proceedings in this Court’s supervisory jurisdiction.

2. [13]

   In relation to the first aspect of that issue, I said the following at [20]:

3. [14]

   It was therefore with some surprise that less than a week before the hearing a short written submission (12 paragraphs occupying 2 pages) was filed by counsel retained by the solicitor acting for Michelle. The submission did not materially add to anything which had been contained in the written submissions of the Secretary, which had been filed on 8 July 2020, almost two months before. It corrected a minor factual error as to Michelle’s age, which could have been advised to the Secretary.

4. [15]

   Neither the Secretary nor Michelle sought costs in the event the summons was dismissed. If costs had been sought, I would not have ordered JE to pay two sets of costs. The ordinary rule is that an unsuccessful litigant should only have to pay one set of costs where there is a single interest on the other side: see Local Democracy Matters Incorporated v Infrastructure NSW (No 2) [2019] NSWCA 118 at [20]-[22] and the authorities there mentioned. Counsel for Michelle advised that he and his instructing solicitor were in the receipt of a grant of legal aid.

5. [16]

   Michelle is a necessary party. She is entitled to appear, and it is important given her age that she be informed of the course and outcome of the proceedings. That could have been done by a departmental officer, or the solicitor retained by the Secretary. Conceivably, it could have been done by a solicitor appointed by Legal Aid to act on her behalf. The decision to have two additional lawyers paid at public expense who added nothing to what had been advanced on behalf of the Secretary, and might have contributed to something of which JE had complained, namely, the number of lawyers opposing her in this litigation is, in my view, a regrettable one. In light of what Mr Kelly had told me on this point as recorded in paragraph [20] of my earlier reasons, I was surprised that this course was taken. Happily, the late service of submissions did not cause the hearing of JE’s summons to be derailed. I do not know, but I doubt that Michelle, a young woman aged 17, specifically instructed additional submissions to be served, late, which added nothing to those already supplied by the Secretary. I appreciate that the cost to the Legal Aid Commission in the present case would have been small. Nonetheless, it is important that such legal aid as is available be spent – and be seen to have been spent – efficiently and effectively.

6. [17]

   I turn to the broader issue of how representation should occur in proceedings brought in this Court’s supervisory jurisdiction following an appeal to the District Court. It is obvious that the nature of litigation in this Court is very different from that in courts in which the underlying factual claims are in issue. The threshold issues in this Court will be quintessentially legal. Only if the moving party makes out a case of error of law or jurisdictional error will any relief issue. It is likely that in the very large majority of cases, those issues will be binary: either the proceedings were, or were not, procedurally unfair; either the reasons of the District Court disclose, or do not disclose, error of law. It is unlikely that a child or young person will be able to advance a separate interest from that advanced by the Secretary.

7. [18]

   The fact that this Court’s jurisdiction is supervisory has the result that some arrangements will have previously been made, in a forum where factual claims are in issue, for the separate interest of the child or young person to be represented. The child or young person will be a necessary party to any proceedings in this Court, but those persons who have previously acted in the interests of that child or young person should be astute to appreciate the different legal circumstances, and approach their roles accordingly.

8. [19]

   There is no reason why the interests of the child or young person where they are wholly or substantially aligned with those of the Secretary, as will very often be the case in this Court, will not be fully protected by representation which liaises with the Secretary’s lawyers, and informs the young person as and when appropriate of how the litigation is proceeding and what the practical consequences are for him or her.

9. [20]

   It should not be necessary to say, especially given what was said on 22 June 2020, but while the interests of the child or young person are important, they do not trump the obligations upon, say, a solicitor or a barrister where there has been a grant of legal aid to assist the court to facilitate the just, quick and cheap resolution of the real issues in the proceedings. Where there is nothing additional that may be said on behalf of the child or young person, then that duty requires the lawyers to adopt a more circumscribed approach than occurred in the present case. It is not merely the waste of time and resources and potential for delay. It is not “just”, and it may not appear to be just, for an unrepresented litigant to be faced by a phalanx of lawyers paid for by public funds.

10. [21]

    The amended summons filed 30 April 2020 should be dismissed.