JE v Secretary, Department of Communities and Justice

LEEMING JA: By summons filed on 25 March 2020, further proceedings have been brought in this Court following its earlier decision of JE v Secretary, Department of Family and Community Services [2019] NSWCA 162. That decision dismissed (save in one respect) challenges in four proceedings brought by JE to decisions of the District Court concerning the care of JE’s daughters. An order was made on 6 April 2020 requiring the applicant to be referred to as “JE”, the father as “AM”, the (maternal) grandparents as “SE” and “YE” and the child who has been joined as “Michelle”. The same pseudonyms were used in this Court’s earlier decision, and all parties have proceeded on the sensible basis that that should continue in these proceedings. The anonymity is mandated by s 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW).

JE’s proceedings in this Court were unsuccessful, except in one respect, which had been conceded in part by the Secretary (see at [48]). The consequence was the remitter of JE’s appeal pursuant to s 91 of the Children and Young Persons (Care and Protection) Act against orders made by the Children’s Court on 12 April 2018 relating to the child Michelle. After this Court’s decision delivered on 3 July 2019, there was a hearing of the remitted appeal, and by decision published on 22 October 2019, the District Court constituted by Robison DCJ dismissed the appeal.

It will be seen that JE’s summons was filed late, although it seems to have been preceded by an affidavit made late last year, to which further reference will be made below. It has been set down for hearing on 2 September 2020.

Towards the conclusion of the hearing I made directions giving JE a further opportunity to supply a supplementary submission, in addition to her “Statement of Issues” which the parties had regarded as summarising her submissions in support of her summons.

The process which came before me was a notice of motion filed on 25 May 2020. It was not accompanied by any affidavit. In her submissions in reply, JE advised that she wished to rely upon an affidavit made by her on 17 December 2019. The Secretary advised that he had a copy of the affidavit. Other parties advised that they did not. There was a copy on the Court file, although it did not include three-page Annexure A. I made directions at the conclusion of the hearing for JE to supply the Annexure (she having confirmed she relied upon it) to my Associate, for copies of the complete affidavit to be distributed to the parties, and giving them an entitlement (although not an obligation) to supply any further submissions arising on the affidavit by 4pm 23 June 2020. I am satisfied that a copy of the affidavit including the annexure was provided to all the parties by Tuesday 23 June 2020, although not precisely in the manner contemplated in the directions, and that the parties had an opportunity to respond to it (SE and YE made a short response, the Secretary said he did not wish to respond).

The notice of motion seeks the following orders:

This was supplemented by a statement of issues sought to be raised by her notice of motion, which is difficult to summarise, and best reproduced verbatim.

During oral submissions, when asked, repeatedly, to identify with particularity the orders that were sought, the applicant agitated a number of complaints including some involving breach of confidence, rights at common law and under the Constitution, and a remedy of mandamus. It is clear that JE has a number of wide-ranging complaints, which I accept are genuinely held by her. Included within those complaints was her application to seek to join her daughter “Dora” to the proceedings.

All of the respondents to the proceedings opposed the orders sought in the notice of motion, and the other orders elaborated in JE’s oral submissions.

It was evident that JE wishes the order of the District Court quashed. As I explained during the hearing, the court constituted by a single Judge of Appeal has no power to do so, and that was a matter for the Court constituted by three judges on 2 September 2020.

The only paragraph of the notice of motion which identifies an order which may appropriately be sought in the interlocutory hearing before me is paragraph 2 insofar as it seeks an order joining the other daughter, Dora, to the proceeding.

As noted at the outset, the very limited success enjoyed by JE from this Court’s orders last year meant that the only issue before the District Court was the appeal against orders made by the Children’s Court relating to Michelle. The only issue on the summons in this Court is whether the District Court committed jurisdictional error or error of law on the face of the record in determining that remitted appeal: see JE v Secretary, Department of Family and Community Services [2019] NSWCA 162 at [7]. The other daughter, Dora, is not a necessary or proper party in relation to those issues.

It appears from pages 3 and 4 of the reasons of Robison DCJ that at some point counsel retained by Dora had appeared. The materials before me do not disclose anything beyond that, and the fact that counsel had sought to be excused, and his Honour’s acceptance that “Dora, frankly, is not involved in these proceedings at all”. His Honour returned to the point at p 27 (“She still wants her daughter Dora to be included in the matter. For the reasons I have given in this judgment, that cannot be the case”).

Notwithstanding what emerges from the course of the remitted hearing and the reasons for judgment, I would not categorically exclude at this stage the possibility that Dora might have an interest in being heard if debate arose as to any question of relief in the event that jurisdictional error or error of law on the face of the record had been made out. The essential background is that both daughters have been separated from their mother for many years and at least one of them firmly expresses the view that she does not wish to be reunited.

But I do not think it is appropriate to join Dora against the possibility, which is at presently merely theoretical, that the issue summarised above might arise during the proceedings. If jurisdictional error or error of law is made out, and there is a prospect of an order that will affect Dora, then I am confident that the Court will be able to ensure that the proceeding is properly constituted and that she is given procedural fairness. My conclusion has been informed in part by reading the reasons of the District Court which are sought to be challenged in these proceedings, and the summons and written submissions to date made by JE. I have not of course heard argument on the summons, but based on my review alone, I am not persuaded that the interests of the just, quick and cheap resolution of the real issues raised by JE’s summons require joinder of Dora now, against the possibility that questions of relief arise.

In reaching that conclusion, I have also had regard to a document supplied to the Registry late on Friday afternoon. I was told that that was a draft document, supplied erroneously by the solicitor acting for Dora, although counsel frankly acknowledged that the fault was his. I had read the short document of 10 paragraphs prior to the hearing. It concluded with a submission that the involvement of Dora’s carers could directly involve the interests of Dora, with the result that the Independent Legal Representative might be required to make a meaningful contribution. What that contribution might be was not articulated. The document did not address how the Court would be assisted meaningfully on the issues of jurisdictional error and error of law on the face of the record. Although, as noted above, I acknowledge the theoretical possibility that there may be a role for separate representation of Dora, that is contingent on one or more of the grounds of review being made out.

I intend no disrespect to JE, but the remaining prayers of the notice of motion, and what was said in their support both in writing and orally, falls short of any order which I would consider to be appropriate in the circumstances of this proceeding. There is nothing in the affidavit (including the annexures) which alters that. I shall not attempt to summarise the affidavit, because it would be difficult to do so, and to no useful end. Representative of the affidavit is paragraph 7:

It follows that the notice of motion filed 25 May 2020 should be dismissed.

On 25 May 2020 the Registrar reserved the question of the appointment of a tutor for Michelle to 22 June 2020. The Secretary addressed this in his submissions, pointing to certain practical difficulties in finding a tutor if the course suggested in BA and LA v Secretary, Department of Communities and Justice [2019] NSWCA 206 at [63]-[69] were followed. He also observed that the children in that case were very young, while Michelle was 16 and capable of giving instructions, and was in fact represented by her “direct legal representatives” pursuant to s 99A of the Children and Young Persons (Care and Protection) Act.

Two issues potentially arise. The first is what is to occur at the hearing on 2 September 2020. Michelle is a necessary party and, in the circumstances of this case, what has previously occurred should continue. I will dispense with the need for a tutor, with the intent that to the extent necessary the legal practitioners presently retained continue to take instructions from Michelle. However, it will have been clear from the hearing, and as Mr Kelly frankly acknowledged, that Michelle had a common interest with the Secretary. It by no means follows that Michelle’s interest requires her to be represented by a lawyer physically appearing in court on 2 September 2020. It seems to me that where a common interest is plain, the Secretary could, to the extent appropriate, expose the approach proposed to be taken in responding to the summons to Michelle’s solicitor, who might readily form the view that her interests were adequately protected by the stance proposed to be taken. I am also confident that those participating in the hearing were alert to the difficulties presented by an unrepresented litigant being faced by a large number of legal practitioners, as was plain from this exchange:

I am conscious that there may also be a more systemic issue of how to address the representation of children in proceedings in this Court brought by way of judicial review from decisions of the District Court determining appeals from the Children’s Court. Although that issue may only infrequently arise, it was mentioned in this Court’s reasons in BA and LA and was the subject of the Registrar’s direction. I think it is better if that is addressed at the hearing on 2 September 2020, rather than being addressed by the Court constituted by a single Judge of Appeal.

The parties were advised on the morning of Thursday 25 June that judgment would be delivered at 10am on Friday 26 June. Very early on the Friday morning, JE supplied by email to my Associate a document described as "AFFIDAVIT OF [JE] for the 29/6/20". Copies appear not to have been supplied to the other parties. The document may have been intended to form the supplementary submission for the hearing of the summons, and I have caused copies to be sent to the other parties at the same time as the reasons are supplied to them. I have also placed a copy on the file. In part the document refers to the notice of motion. Because JE is unrepresented, I have read it. It does not alter any aspect of my reasons.

I shall make the following orders: