Burton v Secretary, Department of Family and Community Services

1. [1]

   GLEESON JA: I agree with McCallum JA.

2. [2]

   McCALLUM JA: This is an application for leave to appeal against interlocutory non-publication orders concerning proceedings involving a child. In May 2017, the child, referred to as Christopher (not his real name), was removed from the care of his parents by the authority of the Secretary of the Department of Family and Community Services. The removal was effected in exercise of the Secretary’s power under s 43(1) of the Children and Young Persons (Care and Protection) Act 1998 (NSW).

3. [3]

   The primary judgment records that Christopher suffers from a significant disability and a range of complex medical conditions requiring frequent serious medical intervention. The Secretary determined that he was not receiving the medical care he required and was at immediate risk of serious harm. The removal was evidently opposed by Christopher’s parents and was effected with the assistance of police in the presence of a number of supporters of the family, including the applicant. Those events were filmed on a mobile phone and have since been the subject of numerous posts on Facebook including posts of the footage.

4. [4]

   Following Christopher’s removal, the Secretary made a care application to the Children’s Court, as required by s 45 of the Children and Young Persons (Care and Protection) Act. It is prohibited to publish information that identifies a child with respect to whom such proceedings are brought: s 105(1) of the Act. As made plain by the terms of that section, the prohibition endures beyond the conclusion of the proceedings. The reason for the prohibition is obvious; it is for the protection of the child. The section gives effect to the consideration that, whatever the merits of any competing contentions in proceedings before the Children’s Court, it is against the best interests of a child to have his or her identity made public in connection with such proceedings. The right to privacy is one of the rights of the child recognised and protected in the Convention on the Rights of the Child. Section 105 of the Children and Young Persons (Care and Protection) Act serves the child’s right to the protection of the law against interference with the right to privacy.

5. [5]

   Mr Burton has participated in the Facebook discussion of Christopher’s removal. Mr Burton is not related to Christopher but appears to have formed a relationship with Christopher’s family through his involvement in a local community organisation. Mr Burton’s public discussion of the case has included the publication of information that identifies Christopher and his parents. It has also included identification and intense criticism of the welfare caseworkers and medical practitioners involved in Christopher’s care.

6. [6]

   The Secretary formed the view that the intensity of the Facebook campaign was such as to impede the Department’s capacity to provide the care Christopher needed. He brought proceedings in the Equity Division seeking orders restraining Mr Burton and another person, Mr Katelaris, from publishing information that identifies Christopher and certain persons associated with the case. Shortly after the commencement of the proceedings, interlocutory orders were made by Rein J as duty judge. On 3 August 2018, Robb J made further interlocutory orders vacating the orders of Rein J and replacing them with orders more closely confined to the events of the care proceedings. The effect of the orders of Robb J, in summary, is as follows:

   1. (1)

      Order 3 restrains the two men from publishing information that identifies the child, his parents, his caseworkers or his medical practitioners in connection with the care proceedings and from publishing details of those proceedings;

   2. (2)

      Orders 4 and 5 (made under the Court Suppression and Non-publication Orders Act 2010 (NSW)) prohibit any person from publishing information that identifies the Secretary’s witnesses who gave evidence in the proceedings in the Equity Division in connection with the care proceedings and from publishing information about the evidence given in those proceedings.

7. [7]

   Mr Burton seeks leave to appeal against those orders. I have concluded that leave to appeal should be refused, for the following reasons.

Requirement for an extension of time

1. [8]

   The applicant requires leave because the orders are interlocutory [1] (as requested by Mr Burton during the hearing of the application, the nature of the orders is explained further below). In respect of the orders made under the Court Suppression and Non-publication Orders Act there is a specific right of appeal also carrying a requirement for leave. [2] In either case, the summons seeking leave to appeal was required to be filed and served within 28 days. [3]

2. [9]

   The summons was not filed within that time but there was an explanation for the delay. A notice of appeal was filed promptly after the orders were made, on 9 August 2018, but was rejected by the Registry on 27 August 2018 due to the requirement for leave. The summons seeking leave to appeal was filed on 13 September 2018. The respondent conceded that the delay was relatively short, had been explained and had not prejudiced the respondent. Acknowledging the principles stated in Tomko v Palasty (No 2), [4] the respondent opposed the extension of time only on the basis of the contention that the applicant did not have a fairly arguable case. I consider that the extension of time should be granted so that the application for leave may be determined according to its merit.

The proceedings before the primary judge

1. [10]

   At the hearing of the present application, Mr Burton indicated that he was confused as to the nature of the orders made by Robb J. As Mr Burton is unrepresented and in light of the course the proceedings took, that is understandable. Mr Burton requested the Court, in giving these reasons, to explain the orders so that he can understand their effect. To that end, it is necessary to go into more detail than would ordinarily be provided in a judgment refusing leave.

2. [11]

   As already noted, Christopher was removed from his parents by the Secretary on the grounds of alleged medical neglect. Mr Burton contended that the Secretary’s allegations were based on false evidence and was highly critical of the people involved. The social media campaign protesting against the removal openly identified Christopher, his parents and caseworkers and medical practitioners involved in the case. The Secretary perceived the campaign to be detrimental to Christopher’s wellbeing. The judgment of the primary judge records that, from the Secretary’s perspective, the campaign was so highly emotionally charged and aggressive that it was capable of compromising the Secretary’s ability to provide to Christopher the intense level of care and medical treatment he requires. [5]

3. [12]

   The summons filed in the Equity Division invoked the Court’s jurisdiction under s 66 of the Supreme Court Act, which confers power to grant an injunction to restrain “any threatened or apprehended breach of contract or other injury”. In the alternative, the summons invoked the Court’s parens patriae jurisdiction. It sought orders restraining the applicant and Mr Katelaris from publishing information tending to reveal the identity of Christopher, any caseworker employed by the New South Wales Department of Family and Community Services and any medical practitioner involved in Christopher’s medical treatment. The summons also sought an injunction restraining the applicant and Mr Katelaris from breaching s 105 of the Children and Young Persons (Care and Protection) Act. However, that part of the Secretary’s application has since been withdrawn. [6]

4. [13]

   The proceedings came before Rein J as duty judge in July 2017 on the Secretary’s application for urgent interlocutory relief including take-down orders and injunctions restraining the applicant and Mr Katelaris from making any further publication. His Honour concluded that orders should be made requiring the defendants to remove the offending material and restraining them from making any further publication that identified the child, his parents, the caseworkers and medical practitioners involved in his care or information concerning the care proceedings. His Honour made interlocutory orders to that effect, each expressed to endure “until further order”.

5. [14]

   The applicant wished to appeal against those orders but evidently decided not to after it was explained that the orders were interlocutory and he would have a final hearing at which he could present his evidence.

6. [15]

   The proceedings were listed for final hearing before the primary judge (Robb J). The matter was heard over four days in late 2017 but did not conclude within that time and was due to be listed for final submissions on a later date. Meanwhile, the interlocutory orders made at the outset by Rein J were still in force. At the outset of the fourth day, the Secretary asked the Court to vary those interlocutory orders pending final determination of the case. The effect of the proposed revised orders was to ensure that the interlocutory restrictions on the defendants were more closely tied to the Children’s Court proceedings and also to invoke the Court’s power under the Court Suppression and Non-publication Orders Act so that the restraint would be enforceable against third parties. [7] The proposed orders also foreshadowed an application to have the defendants dealt with for contempt of the orders of Rein J.

7. [16]

   Justice Robb reserved his decision on the proposed variation orders. For the benefit of the applicant, that means that, as at 6 December 2017, Robb J had finished hearing the application for varied interlocutory orders but had not yet made a decision on that application. At that stage, his Honour had not yet finished hearing the application for final orders (as the parties were still to make final submissions).

8. [17]

   However, after the hearing on 6 December 2017 but before Robb J had made a decision on the application for varied interlocutory orders, the applicant and Mr Katelaris were charged with criminal offences being alleged breaches of s 105 of the Children and Young Persons (Care and Protection) Act. In light of the criminal charges, the Secretary accepted that the claim for final orders and any application to have the applicant and Mr Katelaris dealt with for contempt of the interlocutory orders made by Rein J should be stayed until the criminal proceedings were finished. Justice Robb proceeded to decide the application for varied interlocutory orders, ultimately making the orders from which leave to appeal is now sought. No decision has yet been made on the application for final orders because the Secretary has agreed that should be stayed until the criminal proceedings have been concluded. As I read his Honour’s judgment, Robb J is yet to hear final submissions on the application for final orders.

9. [18]

   Justice Robb published his judgment concerning the application for varied interlocutory orders on 23 March 2018. However, his Honour did not make orders on that date, instead inviting the Secretary to provide revised short minutes. As I understand the position, that is where Mr Burton’s confusion has arisen. When the further interlocutory orders were made on 3 August 2018, an exchange between Mr Burton and the primary judge led Mr Burton to believe that the orders made that date were final orders from which there was an appeal as of right. I apprehend Mr Burton’s confusion was compounded by the fact that the orders ultimately made were expressed to endure “until further order”. That is an indication that they are interlocutory orders, intended to preserve the position only until the final hearing. Mr Burton (again understandably) thought it meant they bind him in perpetuity.

10. [19]

    To summarise in terms I hope will be clear, Robb J originally embarked upon a final hearing which would have resulted in final orders. In the meantime, he was also considering varying the interlocutory orders. When the criminal charges intervened, the conclusion of the final hearing was postponed but his Honour proceeded to vary the interlocutory orders. Like the original interlocutory orders made by Rein J, those orders are intended to preserve the position on an interlocutory basis and only until final determination of these proceedings. The final determination of the proceedings will now not occur until after the conclusion of the criminal proceedings because everyone has agreed the criminal proceedings should take priority, due to the seriousness of the potential consequences. When the criminal proceedings are over, the proceedings in the Equity Division may come back before a judge of that Division for final determination. At that stage, a decision will be made as to whether to make orders that bind Mr Burton indefinitely. At the moment, the orders made by Robb J bind him until that final determination or until some different order is made. That is what is meant by the phrase “until further order”.

Proposed grounds of appeal

1. [20]

   The applicant identified twenty proposed grounds of appeal. I have concluded that leave to appeal should be refused because, in my opinion, none of those grounds enjoy any reasonable prospect of success in the event that leave to appeal were granted.

2. [21]

   An additional reason for refusing leave is that the interlocutory orders made by Robb J in August 2018 vacated and replaced the interlocutory orders made by Rein J in July 2017. Those orders have not been challenged. There is accordingly no utility in the appeal because, if the orders of Robb J were set aside, the effect would be to reinstate the orders of Rein J to similar (but broader) effect.

3. [22]

   In any event, it is appropriate to record my reasons for concluding that the proposed grounds of appeal are without merit.

4. [23]

   The first proposed ground of appeal is:

5. [24]

   The point sought to be raised misconceives the basis for the orders made by Robb J. The proceedings in the Equity Division were concerned with the privacy of the child and the impact on him of the publication of information concerning his case. The protection of information that identifies children the subject of proceedings in the Children’s Court is unconditional; it exists regardless of the content of the evidence in those proceedings. The purpose of the prohibition is to protect children from public discussion of proceedings in which they are involved. The protection of the information concerning other persons involved in Christopher’s care was based on the apprehended threat the campaign posed to the delivery of Christopher’s care and medical treatment. The hearing in the Equity Division was not a rehearing of the care proceedings.

6. [25]

   The second proposed ground of appeal is:

7. [26]

   This point is also misconceived. It is correct that r 7.1 of the UCPR allows proceedings to be commenced by “a natural person”. The plaintiff in the proceedings before Robb J was identified as “Secretary, Department of Family and Community Services”. That was appropriate because the functions of the Secretary are exercised in the statutory capacity of that office; they are not personal to the natural person who holds the office from time to time. It does not follow that the person so described is not a natural person capable of commencing proceedings.

8. [27]

   The third proposed ground of appeal is:

9. [28]

   The Constitutional argument was not explained. The point is in any event misconceived. It overlooks the fact that the orders were sought for the protection of Christopher, not the Secretary.

10. [29]

    The fourth proposed ground of appeal is:

11. [30]

    In order to succeed on this ground, it would be necessary to demonstrate error in the sense stated in House v The King (1936) 55 CLR 499 at 504-505; [1936] HCA 40. The primary judge was not concerned with the application for take-down orders because, after the commencement of the criminal proceedings, that part of the Secretary’s application was deferred. [8] His Honour was satisfied that the Facebook campaign had had “real consequences for the Secretary’s ability to provide the necessary care for Christopher”. [9] The fact that the orders could not eradicate all previous information does not mean there was no utility in stemming its flow. The primary judge concluded that there was a strong case for continuing the interlocutory regime of Supreme Court orders restricting future publications as neither the orders of the Children’s Court nor the threat of criminal liability for contravention of s 105 had been “sufficient to quell the extreme and threatening social media publications that have placed the ability of the Secretary to provide for the proper care of Christopher in considerable jeopardy”. [10] No error has been demonstrated in the exercise of that discretion.

12. [31]

    The fifth proposed ground of appeal is:

13. [32]

    This point is without merit. The making of orders that overlap with an existing statutory prohibition raises a question of utility, not power. The orders had utility beyond the reach of s 105 because, as the primary judge found, the campaign was jeopardizing the availability of medical care and disability support care including the manner in which contact with Christopher’s family could take place. [11]

14. [33]

    The sixth proposed ground of appeal is:

15. [34]

    This point rests on an incorrect premise. Orders under the Court Suppression and Non-publication Orders Act have effect in accordance with their terms and are otherwise unaffected by the conclusion of the relevant proceedings.

16. [35]

    The seventh proposed ground of appeal is:

17. [36]

    As with proposed ground 5, this ground raises a question of utility, not power. To the extent that it contends that the orders were invalid, it is misconceived. To the extent that it seeks to impugn the orders on the grounds of futility, the applicant would have to demonstrate error in the sense stated in House v The King. None has been demonstrated.

18. [37]

    The eighth proposed ground of appeal is:

19. [38]

    The applicant did not establish any basis for the contention that the orders fail the necessity test. This point is without merit.

20. [39]

    The ninth proposed ground of appeal is:

21. [40]

    This ground asserts a failure to have regard to a mandatory consideration. Section 6 of the Court Suppression and Non-publication Orders Act provides:

22. [41]

    Although the primary judge did not expressly refer to that section, it is not reasonably arguable that his Honour failed to take the consideration to which it refers into account. The judgment includes a careful and thorough consideration of the operation of the Act including consideration of the decision of this Court in Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125. Indeed, his Honour cited Ibrahim at [51], a passage in which Basten JA (with the agreement of Bathurst CJ and Whealy JA) stated the proper approach in formulating an order designed to protect the proper administration of justice without impinging upon the principle of open justice.

23. [42]

    On the question of open justice, the applicant drew the Court’s attention to the judgment of Sir James Munby, President of the Family Division of the High Court of Justice of England and Wales in Re J (A Child) [2013] EWHC 2694. While the judgment presents a powerful argument for transparency, particularly in the family justice system, his Honour ultimately made an order protecting the anonymity of the child in that case. The importance of confining final orders in terms reasonably appropriate and adapted to achieve their perceived purpose without inhibiting lively discussion of the circumstances of this case remains open to be addressed by Mr Burton in his submissions upon the resumption of the final hearing.

24. [43]

    The tenth proposed ground of appeal is:

25. [44]

    There does not appear to be any substance in this point. The applicant did not put forward any coherent basis for the contentions made. There is a measure of tension between the applicant’s claim that he has been singled out and his claims of moral right throughout the proceedings. In the proceedings before Rein J, the applicant openly asserted that there was a clash between his “moral imperatives” and the law of contempt, asserting that he would most probably make the decision “to go to gaol”. In the circumstances described in the primary judgment, the decision to bring the proceedings against the applicant appears to have been sound.

26. [45]

    The eleventh proposed ground of appeal is:

27. [46]

    This proposed ground raises the same issues as grounds 5, 7 and 10 and is without merit for the same reasons.

28. [47]

    The twelfth proposed ground of appeal is:

29. [48]

    This point rests on the contention that the people who effected the removal acted unlawfully. No basis has been established for that contention or for the allegation of abuse of process. As already explained, the importance of public discussion is relevant and may be addressed when the hearing before Robb J resumes.

30. [49]

    The thirteenth proposed ground of appeal is:

31. [50]

    As with proposed ground 3, this ground overlooks the fact that the orders were sought for the protection of Christopher, not the Secretary.

32. [51]

    The fourteenth proposed ground of appeal is:

33. [52]

    The applicant did not explain how the orders infringe upon that right or why it might be thought necessary to breach the orders in order to participate in political debate. There is no substance in this point.

34. [53]

    The fifteenth proposed ground of appeal is:

35. [54]

    No foundation is established for the assertions underlying this ground but in any event it is not a proper ground of appeal.

36. [55]

    The sixteenth proposed ground of appeal is:

37. [56]

    This ground is misconceived in a number of respects. The Court’s jurisdiction is secular. The matter in issue in the proceedings at first instance was whether to grant the relief sought by the Secretary which was confined to questions concerning the protection of the child against the alleged impact of the applicant’s social media campaign. The appropriate care orders were a matter for the Children’s Court in the care proceedings and did not arise for consideration by the primary judge.

38. [57]

    The seventeenth proposed ground of appeal is:

39. [58]

    The factual basis for this proposed ground is not established. Further, as with proposed ground 3, it seeks to invoke a doctrine that has no application in this context.

40. [59]

    The eighteenth proposed ground of appeal is:

41. [60]

    This point is without merit. As noted in respect of the sixteenth proposed ground of appeal, the Court’s jurisdiction is secular.

42. [61]

    The nineteenth proposed ground of appeal is:

43. [62]

    As explained above, the orders from which leave to appeal is sought are interlocutory.

44. [63]

    The final proposed ground of appeal is:

45. [64]

    This point is based on a misconception. The criminal proceedings are not being “run” by the Secretary. In response to police having commenced the criminal proceedings, the Secretary appropriately desisted in prosecuting the claim for final orders in the Equity Division, seeking only to maintain the interlocutory regime that was already in place (with some variation to the orders so as to confine their effect more closely to the care proceedings).

46. [65]

    For those reasons, I propose the following orders:

    1. (1)

       Extend the time for filing the summons seeking leave to appeal to 13 September 2018.

    2. (2)

       Dismiss the summons seeking leave to appeal with costs.