Secretary, Department of Communities and Justice v Paul Robert Burton

1. [1]

   These proceedings were commenced in 2017 by the Secretary of the Department of Family and Community Services (“FACS”) and concern a child whose name has been anonymised for the purpose of these proceedings, and to whom I shall refer to as “Christopher.”

2. [2]

   The matter in 2017 was listed before me as an urgent application in the Duty List. In short, Christopher (who was four years old at the time of publication of the 2017 Reasons, and is now aged nine) was suffering from complex medical conditions and was removed from the care of his parents in 2017 pursuant to an order by FACS on the grounds that Christopher was “at immediate risk of serious harm”.

3. [3]

   The proceedings were brought by FACS in 2017 against Mr Paul Burton and Mr Andrew Katelaris (together, “the Defendants”) after they published material concerning Christopher. The material published by the Defendants included material on their Facebook page which identified Christopher by his real name as the subject of action by FACS and of proceedings brought in connection with Christopher, contained images and details of Christopher, his parents and his medical condition, and contained details of the identity of the FACS caseworker and medical practitioners involved in the assessment and treatment of Christopher.

4. [4]

   On 18 July 2017 I handed down reasons for judgment (“the 2017 Reasons”) and made orders as follows, restraining Mr Burton and Mr Katelaris from publishing information about Christopher:

5. [5]

   At paragraph 11 of the 2017 Reasons I set out, by way of background, that:

6. [6]

   Following the handing down of the 2017 Reasons and the making of orders there have been a number of developments at first instance, in the Court of Appeal, and more generally including the return of Christopher to the care of his parents in March 2019 and to the full responsibility of his parents on 9 October 2020: see Tab K of Mr Burton’s affidavit of 2 May 2021.

7. [7]

   There are before the Court two Notices of Motion. The first is that of Mr Burton and Mr Katelaris filed 4 May 2021 and the second is that of the Department of Community and Justice (“DCJ”) filed 6 June 2021. The DCJ is the successor to FACS, a change which was effected by legislation passed by the NSW Legislature and made effective on 1 July 2019.

8. [8]

   I shall refer to the Notice of Motion filed by the Defendants as the “Defendants’ Motion” and Notice of Motion filed in reply by the DCJ as the “DCJ’s Motion”. All the documents including submissions relating to the two motions are contained in the Court Book, which was marked “Exhibit A”.

9. [9]

   In support of the Defendants’ Motion, Mr Burton and Mr Katelaris rely on Mr Burton’s affidavit of 2 May 2021, and his affidavit of 29 June 2021. There is annexed to his 2 May 2021 affidavit an affidavit of Christopher’s mother dated 21 April 2021: see Tab N of Mr Burton’s affidavit of 2 May 2021. By the Defendants’ Motion Mr Burton and Mr Katelaris seek the following relief:

   1. (1)

      a declaration that the child named “Christopher” in these proceedings “is no longer under the care of the Plaintiff and has not been since 9th Oct 2020”;

   2. (2)

      a declaration that “the Plaintiff has no standing before the Court to maintain this action”;

   3. (3)

      for the stay imposed in the matter to be lifted and/or discharged;

   4. (4)

      that “the matter in Equity be dismissed”;

   5. (5)

      damages against the Plaintiff in the sum of “$1,000 per day for each defendant for each day the injunction was in force”; and

   6. (6)

      that all judgments be uploaded onto CaseLaw and made available to the public “without unnecessary redactions”.

10. [10]

    The DCJ’s Motion seeks an order that the Defendants’ motion be dismissed and that the Defendants pay the DCJ’s costs of the motion.

11. [11]

    Mr Burton and Mr Katelaris appear for themselves. Mr M Anderson of Counsel appears for the DCJ. Mr Burton has provided what he described as “comprehensive” written submissions dated 7 September 2021 (“DWS”) and Mr Anderson has provided submissions dated 2 September 2021 (“PWS”).

The Events Following the 2017 Reasons

1. [12]

   The events which followed the publication of the 2017 Reasons have been summarised in March 2019 by the Court of Appeal in Burton v Secretary, Department of Family and Community Services [2019] NSWCA 21. Those reasons concerned an application filed by Mr Burton for leave to appeal against interlocutory non-publication orders made by Robb J (in Secretary, Department of Family and Community Services v Burton [2018] NSWSC 371). McCallum JA (with whom Gleeson JA agreed) concluded that the summons seeking leave to appeal should be dismissed: see [65]. I set out the summary of the proceedings as set out in McCallum JA’s reasons:

2. [13]

   At [24], her Honour McCallum JA said:

3. [14]

   In Burton v Secretary, Department of Family and Community Services [2019] NSWCA 21, there were twenty proposed grounds of appeal refused because the Court considered that none of these grounds enjoyed any reasonable prospect of success in the event that leave to appeal was granted

4. [15]

   In October 2019 the Court of Appeal handed down judgment in the related matter of Burton v Office of the Director of Public Prosecutions [2019] NSWCA 245, an appeal from a District Court decision of Hatzistergos DCJ: Burton v The Office of the Director of Public Prosecutions [2019] NSWDC 120. In October 2018 Mr Burton had commenced proceedings in the District Court seeking damages in respect of an alleged collateral abuse of process. These proceedings were commenced by Mr Burton after he was charged (in December 2017) with four offences under s 105(2) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the Children and Young Persons Act”) and offences under s 16(1) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (“the Court Suppression Act”). These proceedings were dismissed pursuant to s 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) (i.e. for being frivolous and vexatious proceedings). Leave to appeal the decision, however, was granted and the orders made by the primary judge (that the proceedings be dismissed pursuant to s 13.4(1) of the UCPR and that the Plaintiff pay the Defendant’s costs) were set aside. The proceedings were then re-listed in the District Court, and then soon after discontinued by Mr Burton with the consent of the Office of the Director of Public Prosecutions, with no order as to costs.

5. [16]

   On 29 June 2020 Mr Burton and Mr Katelaris commenced proceedings in the District Court claiming damages for malicious prosecution against Mr Lloyd Babb (Director of Public Prosecutions, NSW) and Mr Michael Coutts-Trotter (Secretary of the DCJ). The primary judge, Balla ADCJ, on 14 August 2021 ordered that (i) the State of NSW be joined to the proceedings; (ii) that the two named defendants be removed from the proceedings; and (iii) that the applicant’s notice of motion seeking trial by jury be dismissed. Mr Burton appealed against this decision: Burton v Babb [2020] NSWCA 331. Payne JA and Simpson AJA (with whom Brereton JA agreed), granted leave and allowed the appeal in respect of orders (i) and (ii), refusing leave in respect of order (iii).

6. [17]

   In 2020 Mr Burton also sought leave to appeal from the decision in Secretary, Department of Family and Community Services v Burton (No 2) [2019] NSWSC 1865: see Burton v Secretary, Department of Communities and Justice [2020] NSWCA 68 (per Meagher and Leeming JA). Mr Burton’s grounds of appeal included:

   1. (1)

      that FACS was abolished “on July 1st by royal assent” and that the proceedings were abandoned by the Plaintiff when it ceased to exist on 1 July 2021. FACS is now known as the DCJ;

   2. (2)

      various submissions “directed to the ineffectiveness as to what [had] occurred” (at [18]), including that the Children’s Court proceedings had concluded. The Court of Appeal, however, found that this did not mean that legislative provisions forbidding publication of names and material identifying young children in that Court cease to apply or that there is no longer a basis for final injunctive relief;

   3. (3)

      that Christopher is no longer in NSW. This was found not of itself to prevent the continued operation of the prohibition upon publications or the availability of orders under the Court Suppression Act;

   4. (4)

      a challenge to the informal stay of proceedings pending the criminal prosecution. Mr Burton maintained that he had repeatedly sought to have the litigation heard and determined, however, the Court of Appeal concluded that this ground was not a proper basis for a conclusion that the primary judge erred in declining to dismiss the proceedings; and

   5. (5)

      “dissatisfaction with the legislation and executive action which has occurred, and assert that the system of justice has been brought into disrepute” (at [25]). The Court of Appeal concluded in relation to the grounds advanced that Mr Burton is “entitled to his views. However, they do not disclose error by the primary judge in declining to dismiss the proceedings summarily”: at [25].

7. [18]

   The summons seeking leave to appeal was dismissed: see Burton v Secretary, Department of Communities and Justice [2020] NSWCA 68 at [27].

Christopher’s current circumstances

1. [19]

   Christopher is currently in his parents’ care. The Children’s Court Order made in 2018 allocated all aspects of parental responsibility for Christopher solely to the Minister for Family and Community Services for a period of two years from that date and allocated all aspects of parent responsibility to Christopher’s parents after that two year period and up until he turned 18 years of age. The DCJ wrote to Christopher’s parents on 7 October 2020 confirming that Christopher had been restored to their care on 24 March 2019 and that the Children’s Court Order made in 2018 would cease as of 9 October 2020, with all aspects of parental responsibility then reverting to the parents’ care until Christopher attained the age of 18 years: see Annexure K of Mr Burton’s affidavit of 2 May 2021.

2. [20]

   The family has now moved interstate. Mr Burton advises that Christopher’s parents have been in contact with him: see paragraph 16 of Mr Burton’s affidavit of 2 May 2021.

3. [21]

   Christopher’s parents have full custody and parental responsibility of Christopher who was returned into their full parental care on 9 October 2020. They support the Defendants’ claims in respect of the DCJ and its actions, but they are not parties to the present proceedings and the fact that they support the Defendants is not relevant to any questions that are raised by the present Motions.

The Defendants’ Motion

1. [22]

   The relief sought by the Defendants by their Motion has been set out in [9] above. The Defendants found the present application on the following asserted factual substratum:

   1. (1)

      Christopher is no longer within the jurisdiction.

   2. (2)

      The Secretary and his delegate now have nothing to do with Christopher.

   3. (3)

      Caseworkers and staff in the state which Christopher now resides have nothing to do with Christopher.

   4. (4)

      No doctors in NSW have anything to do with Christopher and no NSW hospital or NSW medical service has any involvement of any kind with Christopher.

   5. (5)

      Since Christopher is no longer in NSW, there is no basis for the Court to make any order or maintain any previous order concerning Christopher.

   6. (6)

      The Secretary has no standing to seek continuation of orders where the child is no longer in the jurisdiction.

   7. (7)

      The parents have full parental responsibility and full care and they can decide what is in Christopher’s best interest.

2. [23]

   Items (1) and (2) are undoubtedly correct. There is evidence from Christopher’s mother to support (4). I do not have direct evidence in relation to (3), but am prepared to proceed on the assumption that it is correct. Items (5) and (6) are erroneous as I shall explain, and (7) is correct in broad terms but not in relation to the question of infringement of s 105 of the Children and Young Persons Act.

3. [24]

   The Children’s Court made an order in 2018, the effect of which was that all aspects of parental responsibility for Christopher were from 9 October 2020 to revert to Christopher’s parents jointly until he attains the age of 18 years: see Tab M to the Affidavit of Mr Burton of 2 May 2021.

4. [25]

   It seems clear that Mr Burton has misunderstood the import of two sets of submissions from Mr Anderson. Mr Anderson in his previous submissions and in the PWS correctly described the effect of the orders made in the Children’s Court in 2018.

5. [26]

   There is no purpose, need for, nor any utility in any declaration to that effect being made and therefore I will not make such a declaration.

6. [27]

   The Defendants’ argument is based on a misconception. The fact that Christopher is no longer within the jurisdiction does not preclude the Children and Young Persons Act from having operation. If at the time the original publications were made by the Defendants the publications infringed the Children and Young Persons Act the matters to which they related are unchanged by what has occurred later in respect of Christopher. Mr Burton in the DWS gives the example of the death of a child. The death of a child is specifically dealt with in s 105(1A) which provides that the Act applies to publication or broadcasts of information until the child reaches the age of 25 or in the event of his or her death.

7. [28]

   Mr Burton gives the example of a person seeking an injunction to prevent a tree from being chopped down. He is correct in asserting that the Court will not grant an injunction if the tree has, prior to the hearing, been destroyed in a tornado. The analogy is not apt here. The prohibitions on publication of details concerning Christopher remain effective even after Christopher has left the jurisdiction or been returned to the care of his parents.

8. [29]

   Section 105 of the Children and Young Persons Act is concerned with preventing the publication of details concerning a child who is, for example, the subject of proceedings before the Children’s Court, or who is the subject of a report under ss 24, 25, 27, 120, 121 or 122 of the Children and Young Persons Act. As McCallum JA explained in the paragraph I have earlier set out (at [13] above), the issue of publication of details concerning a child and his or her treatment is a totally different issue to the question of whether the child was appropriately removed from the control of the child’s parents and the conduct of the care proceedings in the Children’s Court.

9. [30]

   I have endeavoured to explain why the assertions of the Defendants are incorrect, but in any event the Court of Appeal has already pronounced on this matter: see Burton v Secretary, Department of Communities and Justice [2020] NSWCA 68 per Meagher and Leeming JA at [19]-[20]:

10. [31]

    Even were I to hold a different view to that expressed in paragraphs [19] and [20] cited above, which I do not, the Court of Appeal’s decision is binding on me. I drew Mr Burton’s attention to what Leeming JA and Meagher JA had said at [19] and [20] of their decision. Mr Burton contended that at the time of that decision although Christopher had been returned to his parent’s care, responsibility still remained with the Minister, and therefore, what the Court of Appeal had said was not pertinent (and hence not binding) because now full responsibility for Christopher is with the parents. I am unable to accept that argument. The fact that full responsibility for his care has been restored to his parents is no different in character for the purposes of s 105 of the Children and Young Persons Act than the fact that the child had been physically restored to the parents and he has ceased to reside in NSW.

11. [32]

    There is no basis to dismiss the proceedings or for the claimed declaration.

12. [33]

    The proceedings by which the DCJ seeks final orders in relation to non-publication of specified material relating to Christopher will therefore remain on foot. The only reason that the issue of whether final orders should be made has not yet been determined is that the criminal proceedings are ongoing. One of the reasons for delay in the criminal proceedings is that the Defendants have raised a question as to the constitutional validity of s 105. That issue, I was informed by Mr Burton, has recently been the subject of a hearing before Button J in the Common Law Division of this Court and his Honour has reserved on the point. The criminal proceedings have been adjourned for mention in October 2021.

13. [34]

    Once those criminal proceedings have been determined this Court can then proceed to consider whether or not the orders sought by the DCJ in this Court on a final basis should be made.

14. [35]

    The proceedings have been informally stayed pending the hearing of the criminal proceedings.

15. [36]

    Mr Burton made clear that his purpose of including the relief sought in this paragraph was to avoid any argument that the Defendants could not advance their other arguments about the lack of utility of the proceedings which I have dealt with above. The Defendants are not seeking to have the proceedings for final relief heard before the conclusion of the criminal proceedings. The informal stay will therefore continue.

16. [37]

    The Defendants did not at the hearing of their motion press for this head of relief.

17. [38]

    There are two Court of Appeal decisions in this matter that are currently available on CaseLaw, namely:

    1. (1)

       Burton v Secretary, Department of Family and Community Services [2019] NSWCA 21 (this is the decision of Gleeson JA and McCallum JA dated 6 March 2019); and

    2. (2)

       Burton v Secretary, Department of Communities and Justice [2020] NSWCA 68 (this is the decision of Meagher JA and Leeming JA dated 17 April 2020).

18. [39]

    There have been three judgments in relation to this matter which have not been made available to the public, namely:

    1. (1)

       Re Christopher (Supreme Court (NSW), Rein J, 18 July 2017, unrep);

    2. (2)

       Secretary, Department of Family and Community Services v Burton [2018] NSWSC 371 (this is the decision of Robb J dated 23 March 2018 referred to by the Court of Appeal in Burton v Secretary, Department of Family and Community Services [2019] NSWCA 21); and

    3. (3)

       Secretary, Department of Family and Community Services v Burton (No 2) [2019] NSWSC 1865 (this is the decision of Robb J dated 20 December 2019 referred to by the Court of Appeal in Burton v Secretary, Department of Communities and Justice [2020] NSWCA 68).

19. [40]

    Mr Burton contended that all three Equity judgments should be put on CaseLaw without “unnecessary redactions”. He argued that that would promote the interests of open justice. The DCJ takes the position that the decision whether to publish judgments on CaseLaw is a matter for the Court, but that the Court must ensure that publication of any judgment does not bring about the very consequences which the proceedings were designed to prevent. The Defendants, I think, take a very narrow view of what redactions are “necessary”: see T14.1-12 and T40.15-20.

20. [41]

    I should note that until the present Notice of Motion as far as I am aware neither of the Defendants have previously requested that I place the 2017 Reasons on CaseLaw. Nor do I understand, from what was said at the hearing on 10 September 2021, was any request was made for Robb J to publish the content of his judgments on Caselaw.

21. [42]

    Given that the Defendants now seek to have the 2017 Reasons published, I will give fresh consideration to whether I should arrange for that to occur taking into account not only the passage of time, but the fact that the Court of Appeal has in its judgments provided a detailed history of the Equity proceedings which will inform the reader of the background and broad circumstances not only of my decision but those of Robb J. [1] I intend to publish on CaseLaw an unredacted copy of the present judgment (after a period of one week to allow the DCJ time to indicate any concerns it may have as to material that ought be redacted) and will take that into account as well. I will provide a copy of these reasons to Robb J so that he can also consider, should he see fit, the Defendants’ request in respect of his earlier decisions.

DCJ’s Motion

1. [43]

   The DCJ seeks the Court dismiss the Defendants’ Motion and Mr Anderson put forward the reasons for the DCJ’s position. Since I have dealt with all of the matters in the Defendants’ Motion and the relief sought by the Defendants has either been denied or not pressed (other than the application for the three Equity Division judgments to be published), it is not necessary to consider the content of the DCJ’s Motion separately, save that I should note that the DCJ contended that the Defendants’ Motion involves an abuse of process because the Defendants are in effect now advancing the same arguments as were rejected by the Court of Appeal. Whilst I think there is considerable substance to that contention, in view of my conclusions as set out above I do not need to address it any further given that the result for which the DCJ contends in its motion is that the Defendants’ Motion should be dismissed and that is the outcome of the Defendants’ Motion.

Costs

1. [44]

   The DCJ seeks an order that the Defendants pay the costs of the two motions. The usual rule is that an unsuccessful party pays the costs of the other side: see r 42.1 of the UCPR. The Defendants in resisting the order for costs repeated the complaints they have about the DCJ’s conduct: see T39.37-41. Once again the Defendants, convinced of the correctness of their cause in attacking the DCJ (and its predecessor), confuse the issue of care with the issues surrounding publication. Mr Burton also referred to his parlous financial circumstances but whilst that may have practical consequences in relation to recovery of the costs by the DCJ, I do not accept that the DCJ should for that reason not be awarded its costs, first because the motion was brought by Mr Katelaris as well as Mr Burton and secondly because the Defendants’ Motion (as I have explained) is based on an erroneous view that has previously been dealt with and rejected by the Court of Appeal. Litigants in person, no less than represented litigants, must take into account the cost consequences for the other party of the case or applications they bring.

2. [45]

   In my view there is no reason not to follow the usual rule and I order the Defendants to pay the Plaintiff’s costs of the two motions.

Orders

1. [46]

   I therefore will make the following orders:

   1. (1)

      The Defendants’ Notice of Motion is dismissed.

   2. (2)

      The Defendants are to pay the Plaintiff’s costs of the Defendants’ Motion and of the DCJ’s Motion.