Secretary, Department of Family and Community Services v Smith

1. [1]

   MACFARLAN JA: I agree with Gleeson JA.

2. [2]

   GLEESON JA: The applicant, the Secretary, Department of Family and Community Services (the Secretary) seeks leave to appeal against an order dismissing proceedings commenced by the Secretary seeking a permanent injunction restraining the respondents from publishing information conveying that the child the subject of this proceeding (a) has been placed in foster care; and/or (b) is under the parental responsibility of the Minister for Family and Community Services (the Minister); and/or (c) is a ward of the State or to similar effect; and commanding the respondents to remove from the Walking Warriors 4 Missing Children Facebook page any posts which convey those matters: Secretary, Department of Family and Community Services v Smith [2017] NSWSC 6.

3. [3]

   As that order does not concern a matter involving a dispute of the value of $100,000 or more, the Secretary requires leave to appeal: Supreme Court Act 1970 (NSW), s101(2)(r).

Factual background

1. [4]

   The child, who is referred to in the proceeding by the pseudonym “Julian”, disappeared on 12 September 2014 and has not been seen since. At the time of his disappearance, Julian was a child in the care of the Minister. He had been placed with carers, along with his sister, who is referred to in the proceeding by the pseudonym “Sarah”. Julian is a foster child, or what is known under the legislation as a child in “out-of-home-care”: Children and Young Persons (Care and Protection) Act 1998 (NSW) (Care and Protection Act), s 135.

2. [5]

   It is not presently known whether Julian is alive or dead. A police investigation continues. There has been widespread publicity concerning Julian’s disappearance. However, the fact that Julian was in the Minister’s parental responsibility and placed with foster carers at the time of his disappearance is not widely known to the public. The publicity surrounding his disappearance has generally referred to the carers as Julian’s parents.

3. [6]

   The first respondent, Allanna Pearl Smith, describes herself as an advocate for children’s rights and interests. She is a member of a group which posts to a Facebook page known as the “Walking Warriors 4 Missing Children”. Ms Smith wishes to promote a coronial inquest into Julian’s disappearance and to that end she and her associates wish to publish a petition and online statements, which would include information to the effect that Julian was in foster care and/or was a “State ward” at the time of his disappearance.

4. [7]

   Although not a legal entity, “Walking Warriors 4 Missing Children” was named as the second defendant in the proceeding below, and the second respondent in this Court. It did not appear either below or in this Court.

5. [8]

   The Secretary brought proceedings against the respondents seeking an injunction to restrain them from publishing the fact that Julian was placed in foster care under the parental responsibility of the Minister, or that he is a ward of the State, and requiring that certain posts be removed from a Facebook page.

6. [9]

   Orders to that effect were made ex parte by the primary judge on 2 September 2016 until 7 September 2016 when the summons was first returnable. The orders were continued, on an interlocutory basis, until the hearing on 15 November 2016. On that date, his Honour continued the interim injunction until the delivery of his judgment, which was reserved.

7. [10]

   On 23 January 2017, his Honour dismissed the Secretary’s application for a permanent injunction and discharged the existing interlocutory injunction, to take effect from 6 February 2017.

8. [11]

   Following an application by the Secretary for a stay pending appeal, on 3 February 2017, his Honour extended the interlocutory injunction (but only against the first respondent, Ms Smith) until the hearing of the appeal or further order of the Court, in the following terms:

9. [12]

   The Secretary’s primary case below was that the Court had power to make the orders sought in the exercise of its inherent parental – parens patriae – jurisdiction to act in the interests of those who are incapable of taking care of themselves. Reference was made by the Secretary to the description of the court’s parental jurisdiction in Re S (a child) (identification: restrictions on publication) [2003] EWCA Civ 963; [2004] Fam 43 (Re S).

10. [13]

    The Secretary pointed to four matters in support of making restraining orders against the respondents: (a) that identifying a child who is in foster care is likely to have a stigmatising effect on the child; (b) the probable impact the publication would have upon the child’s sibling and foster family; (c) that the proposed publication has the potential to hinder the police investigation; and (d) that the public interest did not support the publication in the manner proposed by the respondents.

11. [14]

    Counsel for the Secretary (who was not counsel who appeared in this Court), submitted before the primary judge that the court was engaged in a “balancing exercise” involving the interests of the child and other relevant interests. That was made plain by the following oral submissions by counsel for the Secretary:

12. [15]

    The Secretary’s alternative case below was that the Court could grant an injunction to restrain the commission of an offence pursuant to s 105 of the Care and Protection Act. This argument was only faintly pressed. In writing the Secretary accepted that in light of the decision of Studdert J in Waters v Pacific Publications Pty Ltd [1999] NSWSC 366 (concerning the predecessor provision to s 105), it was not clear that the publication by the respondents in the terms proposed would amount to the commission of a criminal offence. That concession recognised the force of Studdert J’s reasoning in Waters concerning s 68 of the Children (Care and Protection) Act 1987 (NSW) (the 1987 Act) - that it could not have been the intention of Parliament to create an offence that would result simply from naming a child who happened to be the subject of care proceedings.

13. [16]

    In oral argument before the primary judge, counsel for the Secretary frankly acknowledged that he did not “place a great emphasis” on this alternative argument. Counsel accepted that the decision in Waters remains good law in relation to the Care and Protection Act, s 105 and that Waters presented a difficulty in establishing an offence where the only act complained of is the identification of the child by name and that they are in foster care, because it appears from Waters that there needs to be more of a link with the care proceedings.

Relevant statutory provisions

1. [17]

   Part 1 of Ch 2 of the Care and Protection Act sets out the objects and principles of the Act. Section 7 makes plain that these provisions are “intended to give guidance and direction in the administration of the Act” and that “[t]hey do not create, or confer on any person, any right or entitlement enforceable at law”.

2. [18]

   Section 9 sets out the principles for the administration of the Care and Protection Act, and s 9(1) relevantly provides:

3. [19]

   Section 105 of the Care and Protection Act relevantly provides:

The primary judge’s reasons

1. [20]

   The primary judge’s reasons contain a careful analysis of the court’s inherent jurisdiction to make orders restraining publication of information concerning a child. His Honour accepted that the court had power to make the orders sought by the Secretary in the exercise of the court’s parental jurisdiction, but declined as a matter of discretion to restrain the proposed publications.

2. [21]

   His Honour rejected the Secretary’s alternative argument that the proposed publications would involve the commission of an offence under the Care and Protection Act, s 105. Accordingly, it was unnecessary for his Honour to consider whether this was an exceptional case in which an injunction would issue to restrain the probable commission of a criminal offence: The Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39; [1980] HCA 44 at [18] (Mason J).

3. [22]

   It is convenient to set out in full his Honour’s summary of his reasons and conclusions at [78]-[85], as follows:

Proposed grounds of appeal

1. [23]

   The proposed grounds of appeal are essentially directed to three matters. The Secretary’s written submissions also raised a fourth matter.

2. [24]

   The first asserts that his Honour applied an incorrect approach to the exercise of the court’s parental jurisdiction in treating the best interests of the child as a relevant, but not the paramount consideration. It was contended that his Honour erred because the child’s best interests should have been afforded paramountcy.

3. [25]

   The second asserts that his Honour should have found that the proposed publications would infringe the child’s justiciable rights, in breach of the Care and Protection Act, s 105.

4. [26]

   The third asserts, in the alternative to the first matter, that his Honour erred in the exercise of his discretion because it was not reasonably open to his Honour to hold that Ms Smith’s right to free speech outweighed the child’s welfare and other considerations.

5. [27]

   The fourth matter asserts that the Court should have made an order under the Court Suppression and Non-publication Orders Act 2010 (NSW) of its own motion.

Disposition of application

1. [28]

   Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted: Sharpe v Heywood [2013] NSWCA 192 at [34]; McMahon v Permanent Custodians Ltd [2013] NSWCA 275 at [57]. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32].

2. [29]

   The starting point is to observe that plainly, his Honour’s decision to decline to grant injunctive relief was discretionary. Accordingly when considering whether there should be a grant of leave to appeal, the considerations identified in House v R (1936) 55 CLR 499 need to be kept in mind. See also Lovell v Lovell (1950) 81 CLR 513 at 518-519 and 532-533; Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621 at 627. In House v The King at 504–5 the Court (Dixon, Evatt and McTiernan JJ) emphasised that the discretion must be exercised according to settled principle:

3. [30]

   These principles are applied to a wide range of discretionary judgments, including the refusal to grant final injunctive relief: ACCC v Dataline.Net.Au Pty Ltd (in liq) and Ors (2007) 161 FCR 513; [2007] FCAFC 146 at [115].

4. [31]

   Proposed grounds 1, 2, 6 and 7 challenge his Honour’s approach that the child’s welfare was a relevant, but not paramount consideration, and must be balanced against competing rights and interests. The Secretary submitted in this Court that the child’s safety, welfare and well-being is the paramount consideration, and that his Honour erred in failing to apply that approach.

5. [32]

   In support of this argument the Secretary submitted that the taxonomy of cases described by Lady Hale in Re S into those invoking the “custodial” aspect of the court’s inherent jurisdiction and those invoking the “protective” aspects of its inherent jurisdiction, did not apply in this State. The Secretary pointed to the principle stated in the Care and Protection Act, s 9(1), and submitted that this provision reflected a broader application of the principle of paramountcy in this State. In oral argument the Secretary went so far as to submit that the principle in s 9(1) governed the exercise of the court’s inherent parental jurisdiction.

6. [33]

   As indicated at [78] of his Honour’s summary of his reasons (see [22] above), his Honour accepted the distinction described in Re S between the “custodial” and “protective” aspects of the court’s parental jurisdiction. He found that this case did not engage the “custodial” aspect of the court’s parental jurisdiction (where the child’s interests are paramount) because it did not concern the upbringing of the child or an exercise of parental responsibility for the child. While that finding is challenged by the Minister, in his alternative argument, the finding was clearly open. There is no merit in the Secretary’s submission that the proposed publications put in issue the manner of Julian’s upbringing.

7. [34]

   Insofar as the Secretary challenges his Honour’s finding that this case engaged the “protective” aspect of the court’s parental jurisdiction (where the child’s welfare was a relevant, but not paramount consideration), there is no arguable error. The distinction between the “custodial” and “protective” jurisdictions was recognised by the House of Lords in S v McC (orse S) and M (DS intervenor); W v W [1972] AC 24 (S v McC). That case concerned the ordering of blood tests with a view to determining the paternity of a child involved in divorce proceedings. The House rejected the argument that this was a matter of upbringing in which the child’s interests (which might well be prejudiced by a finding that he was illegitimate) were paramount. Lord MacDermott at 47-48 and Lord Hodgson at 58 both recognised the distinction between the court’s custodial jurisdiction, where the child’s interests were paramount, and the court’s protective jurisdiction, where the child’s interests were relevant, but not paramount.

8. [35]

   In Robb v Director General Department of Community Services & Ors [1999] NSWSC 754 at [10] – [11], Young J (as his Honour then was) accepted the distinction between the “custodial” and “protective” jurisdictions, citing S v McC.

9. [36]

   In Re S (at [20]-[23]), Lady Hale reviewed S v McC and the line of subsequent cases which have accepted this distinction. Those cases included Kelly v British Broadcasting Corpn [2001] Fam 59, to which the primary judge referred (at [16]), in which Munby J described at [74] three established classes of case in which the Court might theoretically exercise parental jurisdiction to restrain publication in the media of information concerning a child. In the first class of case, the jurisdiction is not exercisable at all and the child is left to whatever remedies against the media the law would give an adult in comparable circumstances. In the second, the jurisdiction is exercisable, but in circumstances where, because the Court is exercising only its ‘protective’ jurisdiction, the child’s interests are not paramount and where a so-called balancing exercise has to be performed. The third is where the Court is exercising its ‘custodial’ jurisdiction; there the child’s interests are paramount.

10. [37]

    His Honour found (at [30]) that, in deciding whether to exercise the jurisdiction in the second category of case, it is appropriate to consider:

11. [38]

    His Honour continued (at [31]):

12. [39]

    Insofar as the Secretary contended that this reasoning disclosed error because the paramountcy principle stated in the Care and Protection Act, s 9(1) governed the exercise of the court’s “protective” jurisdiction, that argument conflated the relief sought by the Secretary under the court’s parental jurisdiction, with the manner in which the Care and Protection Act is to be “administered”, as to which the principle stated in s 9(1) is “intended to give guidance and direction”. The parental – parens patriae – jurisdiction of the court does not arise under the Care and Protection Act; it is part of the court’s inherent jurisdiction: Care and Protection Act, s 247; Director-General, Department of Community Services; Re Thomas [2009] NSWSC 217 at [22] (Brereton J); see also Director-General, Department of Community Services v Y [1999] NSWSC 644 at [89] (Austin J) regarding similar provisions in previous legislation.

13. [40]

    The grant of leave to appeal is discretionary. The argument based on the paramountcy principle was not put below, and at least by inference, the contrary was accepted below by the Secretary. The Secretary is bound by the concession made below that the court was engaged in a “balancing exercise” when determining whether to grant an injunction to restrain the proposed publications. That concession is directly inconsistent with the way in which the Secretary now seeks to frame his case.

14. [41]

    It is well established that “[e]xcept in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so”: Metwally v University of Wollongong (1985) 60 ALR 68 at 71; [1985] HCA 28.

15. [42]

    The Secretary did not point to any exceptional circumstances why he ought to be permitted to advance this new point on appeal. It would be unfair, in my view, to permit the Secretary to now argue, contrary to the argument advanced below, that his Honour was bound to give effect to the so-called paramountcy principle.

16. [43]

    Further and importantly, the new point was not fully argued in this Court after counsel for the Secretary accepted that he was bound by the concession made below that the court was engaged in a “balancing exercise”. In the absence of full submissions on this point, and given the potential impact on other parties, it is not appropriate to grant leave in respect of this point.

17. [44]

    Proposed grounds 1, 2, 4 and 5 seek to challenge his Honour’s construction of the Care and Protection Act, s 105. Other than to emphasise certain textual differences between the Care and Protection Act, s 105 and the predecessor provision - s 68 of the 1987 Act - the Secretary did not identify any relevant error in his Honour’s approach to the construction of s 105 of the Care and Protection Act.

18. [45]

    In Waters v Pacific Publications Pty Ltd, Studdert J held that the offence created by s 68 of the 1987 Act was not one of strict liability and that the provision was not to be given such a broad construction as to create an offence in the case of a publication of the name of a child in care where there was no specific reference to the care proceedings concerned.

19. [46]

    The primary judge observed that s 105 of the 1998 Act was in similar, but not identical, terms to s 68 of the 1987 Act – relevantly, s 105 now specifically provides that the offence is one of strict liability and extends in some respects the scope of the prohibition. Nevertheless, his Honour held that s 105 did not remove the requirement for some nexus between identification of the child and pending, contemplated or completed proceedings (or non-court proceedings or a relevant report).

20. [47]

    His Honour agreed with the observation of Studdert J in Waters v Pacific Publications Pty Ltd that it obviously cannot have been the intention of the legislature to make it an offence simply to publish the name of a child who has been involved in relevant proceedings, although taken out of context and literally, the provision would admit such a construction. That construction was supported, his Honour noted, by the incorporation of strict liability into an offence under s 105. His Honour concluded at [40] – [41]:

21. [48]

    Section 105 is contained in Chapter 6 of the Care and Protection Act, which deals with Children’s Court Procedure. The mischief to which the Chapter is directed, is the protection of the identity of a child or young person who is the subject, or is likely to be the subject, of such proceedings, or who appears, or is likely to appear in such proceedings, or who is, or is likely to be mentioned or otherwise involved in such proceedings, or in any non-court proceedings, or who is the subject of a report under ss 24, 25, 27, 120, 121 or 122 of the Care and Protection Act.

22. [49]

    As his Honour correctly recognised, that s 105 now creates a strict liability offence strongly supports the view that s 105 cannot have been intended to prevent the publication of the name of any child about whom care proceedings have been taken or a report has been prepared, absent reference to those proceedings or such a report. I am not persuaded that his Honour’s construction of s 105 as applied to the facts of this case is arguably wrong.

23. [50]

    Proposed grounds 3, 4, 5, and 7 each challenge his Honour’s discretionary decision to decline to grant a permanent injunction against the respondents restraining the proposed publications. These grounds assert that his Honour either failed to take into account relevant matters, or complain about the weight given by his Honour to relevant matters.

24. [51]

    Proposed ground 3 asserts that his Honour erred in holding that the impact of disclosure of Julian’s status on the police investigation is likely to be “neutral”, given the evidence of Detective Chief Inspector Jubelin. The Secretary emphasised that this evidence was unchallenged and untested and submitted that it ought to have been accepted.

25. [52]

    His Honour was not persuaded that disclosure of Julian’s status would hinder the police investigation and gave a number of reasons why he found the opinion and reasoning of the Det Chief Inspector unconvincing (at [54]):

26. [53]

    Notwithstanding that the evidence of the Detective Chief Inspector was not directly challenged or otherwise contradicted by witnesses called by Ms Smith, his Honour was entitled not to give that evidence much weight for the reasons he gave: Cole v The Commonwealth of Australia and Others [1962] SR NSW 700 at 704; Colonial Mutual Life Assurance Society Ltd v Donnelly (1998) 82 FCR 418 at 436.

27. [54]

    Proposed ground 4 asserts that his Honour erred in characterising Julian’s status as a legitimate subject of public interest. That contention ignores that his Honour carefully considered the (1) private interest of Ms Smith in being able to do what she is otherwise entitled to do in a free society, namely to speak of, discuss and disclose truthful non-defamatory matters known to her, in respect of which she is bound by no obligation of confidentiality, and (2) the public interest in freedom of expression and discussion, in particular in connection with the out-of-home-care system.

28. [55]

    His Honour found (at [75]), that there is a substantial public interest in accountability and scrutiny of the out-of-home-care system, and in the accuracy of the reporting of the circumstances of Julian’s disappearance. The Secretary did not directly challenge this finding. His Honour further found that the fact that Julian disappeared while he was in the parental responsibility of the Minister, and in the care of Departmentally-approved carers, is a matter of legitimate public interest: at [83]. That finding was open to his Honour.

29. [56]

    Proposed ground 5 asserts that his Honour disregarded the interests of Julian’s sister, who was also a child in care. Again, that contention ignores his Honour’s reasons. His Honour gave careful consideration to the potential impact on Julian’s sister, Sarah, of disclosure of Julian’s in-care status. His Honour accepted that Sarah’s interests and welfare were relevant because she is a child, in the Minister’s parental responsibility, to whose protection the Court’s jurisdiction extends: at [62]. He found that whilst Sarah has interests which may support some form of protection for her, they do not include preventing the disclosure of Julian’s in-care status. That finding was open to his Honour.

30. [57]

    Proposed ground 5 also asserts that his Honour erred in disregarding the interests of Julian’s carers. Again this ignores his Honour’s reasons. His Honour accepted that the interests of the carers were not irrelevant, although they are not in the protection of the Court, because an impact on them may have consequences, direct or indirect, for the welfare of Sarah, whose interests are relevant: at [63]. His Honour found that the stated concerns of the carers, though no doubt genuinely held, overstated the significance of disclosure of Julian’s in-care status. That finding was open to his Honour.

31. [58]

    Proposed ground 7 challenges the weight given by his Honour to the potential for Julian’s welfare to be jeopardised by the proposed publications. The Secretary submitted that his Honour’s finding that it is likely to be stigmatising for a child to be known to be in the parental responsibility of the Minister and that this is a negative impact on Julian’s welfare was a significant factor in favour of an injunction, while the impact of an injunction upon Ms Smith’s right to freedom of expression would be minimal.

32. [59]

    His Honour found (at [52]) that the negative impact on Julian’s welfare, which he accepted weighed in favour of the relief sought by the Secretary, has to be placed in context, in order to appreciate its significance. He continued (at [52]):

33. [60]

    No specific error is alleged in relation to this finding. It was not suggested by the Secretary that in balancing Julian’s interests with other relevant interests, his Honour’s decision was unreasonable or plainly unjust. No arguable error has been demonstrated.

34. [61]

    One further matter should be mentioned. There is no merit in the Secretary’s complaint that his Honour erred in holding that, as Julian would have to cope with other significant difficulties if found alive, the additional detriment he would suffer by being known as a child in care would “add little” or be “somewhat marginal”. The Secretary acknowledged so much below when his counsel accepted that if Julian is found, “the fact that he may or may not have been identified as being in foster [care] is going to be the least of his concerns”. The Secretary adhered to that concession in this Court. It was well open to his Honour to find (at [55]):

35. [62]

    In my view, the Secretary has not demonstrated that his Honour’s exercise of discretion is arguably wrong.

36. [63]

    In writing, the Secretary submitted that the Court below of its own motion should have made a suppression and non-publication order under sub-section 8(1)(a) and (e) of the Court Suppression and Non-Publication Orders Act 2010 (NSW). The Secretary also submitted that it is possible that when he is found, that Julian will be a witness for the prosecution of a number of offences, which may include those of a sexual nature, including acts of indecency thereby attracting the operation of sub-section 8(1)(d) of the Act.

37. [64]

    There is no ground of appeal directed to this complaint. No submission was made before the primary judge, in writing or at the hearing, that a suppression and non-publication order should be made under s 8(1) of the Court Suppression and Non-Publication Orders Act. Nor was any oral argument directed to this matter in this Court. This complaint may be taken not to be pressed by the Secretary.

Conclusion and Orders

1. [65]

   As the proposed grounds of appeal do not identify any respect in which the primary judge was arguably wrong in dismissing the Secretary’s application for injunctive relief, the application for leave to appeal should be refused. There is no reason why costs should not follow the event: Uniform Civil Procedure Rules, 2005 (NSW), r 42.1.

2. [66]

   I propose the following orders:

   1. (1)

      Dismiss the summons seeking leave to appeal.

   2. (2)

      Order the applicant to pay the first respondent’s costs of that summons.

3. [67]

   PAYNE JA: I agree with Gleeson JA.