X v Director-General of the Department of Community Services

BEAZLEY JA: X is the father of Z who is the subject of a care order made under the Children (Care and Protection) Act 1987 (NSW) (the 1987 Act). X has made a number of applications to the Children’s Court seeking leave to have the care order reviewed. The last such application was heard by Mr Zdenkowski, Children’s Court Magistrate on 3 September, 2001. Leave was refused. X sought to appeal to the District Court from that order. That appeal came before Black DCJ who, on the application of the Director-General of the Department of Community Services (the Director) struck out the appeal on the basis there was no right to appeal in respect of an application for leave. X has brought an appeal to this Court from that decision.

The Director, by way of Notice of Motion filed on 17 October 2001, seeks to have X’s appeal to this Court dismissed as incompetent on the ground that the Court of Appeal has no jurisdiction to entertain the appeal: see Druett v Director-General of Community Services [2001] NSWCA 126.

Although the point advanced by the claimant can be dealt with shortly, X has made several unsuccessful attempts to have the care order made in respect of his daughter reversed, and is clearly confounded by the legal technicalities which he is encountering. Accordingly, a short review of the history of the making of the care order and the subsequent legal proceedings initiated by X is warranted. It should be noted that X’s wife, who is the mother of the child, is not a party to the proceedings before this Court, but supports her husband’s application.

X’s daughter, born in 1999, was removed from the care of her parents on 28 January 2000 by officers of the Department of Community Services. On 31 January 2000 the Director filed an application in the Children’s Court seeking care orders in respect of Z pursuant to s 72 of the 1987 Act. On 10 October 2000, Mr Barnett, Children’s Court Magistrate, made orders placing the child in the care of her maternal grandmother until she reached 18 years of age.

On 16 October 2000, pursuant to s 81 of the 1987 Act, X and his wife appealed to the District Court. On 30 November 2000 Puckeridge DCJ, after reconsidering the merits of the case, dismissed the appeal and confirmed the orders of the Children’s Court.

On 18 December 2000, X applied pursuant to s 90 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the 1998 Act) to the Children’s Court for leave to make an application to rescind the care order. On 19 February 2001, Mr Mitchell, Magistrate of the Children’s Court, refused leave to bring the application.

On 22 February 2001, the opponent lodged an appeal to the District Court challenging Mr Mitchell’s decision refusing leave. The only section of the 1998 Act which provides for an appeal is s 91. The matter came before Knight DCJ. The Director applied to have the appeal dismissed on the grounds that there was no jurisdiction to entertain it. On 21 March 2001 Knight DCJ held that the District Court did not have jurisdiction under s 91 of the 1998 Act to hear an appeal from a decision of a Magistrate refusing leave to bring an application challenging a care order.

On 28 March 2001, X commenced proceedings in the Common Law Division of the Supreme Court. He sought to challenge the Children’s Court decision of 19 February 2001 refusing leave to apply for a rescission of the care order. The matter was heard by Hulme J on 15 May 2001. His Honour proceeded on the basis that s 104 of the Justices Act 1902 (NSW) potentially provided a source of jurisdiction to hear the matter, on the basis that the order of the Magistrate refusing leave was interlocutory within the meaning of s 104.

Hulme J, however, was not satisfied that any relevant error of law was made (see Mason P on the application for leave referred to below). Nonetheless, he made the following comments:

Hulme J also accepted that there was an alternative basis upon which the summons might properly be before the Court, namely in the Court’s original jurisdiction as parens patriae. However, his Honour dismissed the summons on that ground for lack of evidence.

An application for leave to appeal from Hulme J’s decision was dismissed by the Court of Appeal on 25 June 2001.

On 26 June 2001 X lodged a fresh application in the Children’s Court pursuant to s 90 of the 1998 Act again seeking leave to rescind the care order. On 3 September 2001 Mr Zdenkowski, Magistrate of the Children’s Court, declined to grant leave on the ground that there had not been a significant change in circumstance to warrant a review of the care order.

On 5 September 2001, X again appealed to the District Court from the decision of Mr Zdenkowski. On 26 September 2001, Black DCJ dismissed the appeal for the same reason as Knight DCJ, namely that the Court did not have jurisdiction to hear the matter.

As already stated, the current appeal is from the decision of Black DCJ.

The original care order in respect of Z was made under the 1987 Act. That Act was replaced by the 1998 Act. Section 90 and 91 of the 1998 Act, with which I am presently concerned, came into operation on 18 December 2000, and is the relevant legislation for present purposes.

Under s 91 of the 1998 Act, an appeal lies to the District Court from a decision of a magistrate in respect of an application to rescind or vary a care order made brought under s 90. The section provides:

The predecessor to s 91 of the 1998 Act was s 81 of the 1987 Act. For present purposes the only material difference between the two provisions appeared in subsection (1). Section 81(1) was in the following terms:

The right to appeal from the District Court to the Supreme Court is found in s 127 of the District Court Act 1973 (NSW). Section 127 provides:

An “action” is defined in s 4 of the District Court Act to mean “action in the Court …”.

Section 48 of the Supreme Court Act 1970 (NSW) assigns such appeals to the Court of Appeal.

It is convenient at this point to deal directly with the point in issue, namely whether this Court has jurisdiction to hear an appeal from a decision of a District Court judge brought in respect of an appeal purported to be brought under s 91 of the 1998 Act.

The Director submits that this issue has been determined by the Court in respect of s 81 of the 1987 Act in Druett and further submits that s 91 of the 1998 Act is in relevantly similar terms.

In Druett Naughton DCJ heard an appeal from a decision of Mr Huber, Children’s Court Magistrate pursuant to s 81 of the 1987 Act. The appellant appealed to the Court of Appeal. The Court was concerned with whether there was jurisdiction to entertain the appeal. Hodgson JA (Giles JA and Ipp AJA agreeing) said at 12-13:

Section 91 of the 1998 Act is, for all relevant purposes, substantially the same as s 81 of the 1987 Act in that it relates to statutory appeals of the kind referred to by Hodgson JA. There is nothing to distinguish this case from Druett, which itself applies a well established line of authority on this issue. It follows that the Court of Appeal does not have jurisdiction to hear the appeal purported to be brought by X from the decision of Black DCJ.

Strictly, that disposes of the application before me and in the ordinary course, that would mean that the appeal should be dismissed. However, there are a number of issues which were raised during argument to which reference should be made.

During the course of the various proceedings in this matter, comments have been made in judgments upon which X acted, believing that the comment directly applied to the circumstances in which he currently finds himself. The first such comment was made by Mason P in an unreported judgment in which his Honour stated:

That comment was not necessary to the decision and was not an essential part of it. In legal terms it was obiter dicta. X is understandably confused by the fact that he believed that if he followed what Mason P said, his legal course would be properly set. Unfortunately that is not the case. His Honour’s comment appears to relate to the bringing of proceedings in the Children’s Court. The matter with which I am here concerned relates to an application for leave to bring such proceedings. Black DCJ has followed the decision of Knight DCJ that such an application is not susceptible to appeal to the District Court under s 91 of the 1998 Act. Further, his Honour’s comment in relation to “appellate review on the law” was that appellate review was to the Supreme Court. That is quite different to saying that there is a right of appeal to the Court of Appeal.

There are provisions in the Justices Act which provide for an appeal to the Supreme Court from certain decisions and orders of magistrates on a question of law and it is to that which Mason P was presumably referring. It is unnecessary for the purposes of the present application to determine whether those provisions have any application to the decision of Mr Zdenkowski.

The second comment was made by Black DCJ when he said that X had a right of appeal to this Court. That comment again was obiter dicta. Having regard to the conclusion at which I have arrived, that comment was wrong. Counsel for the Director appropriately advised me that counsel who appeared for the Director in the proceedings heard by Black DCJ failed to correct his Honour’s error at the time and accordingly does not seek any costs of the application before me. Again, unfortunately, X believed he could safely follow his Honour’s comment and appeal to this Court. For the reasons which I have given that is not the case.

X also put forward two further bases upon which, he submitted, this Court has jurisdiction. First, he claimed that the Court had jurisdiction under s 247 of the 1998 Act. That provision provides:

The Director submitted s 247 did not confer any jurisdiction on the Court. Rather it “simply assert[ed] that there is no restriction on jurisdiction. [The section did] not enable [the] Court to entertain an appeal from the District Court”. It was submitted that this section simply confirmed the traditional parens patriae jurisdiction of the Court.

The parens patriae jurisdiction of the Court was discussed by Austin J in Director General, New South Wales Department of Community Services v Y [1999] NSWSC 644. His Honour said at 88-89:

Section 247 of the 1998 Act does not assist X in the present case. It does not enlarge the jurisdiction of the Court. As Hodgson J said in Re Anna, Bruno, Courtney and Deepak [2001] NSWSC 79 at 21, s 247 of the 1998 Act preserves the “traditional jurisdiction” of the Court. This Court does not have before it an application by X under that jurisdiction. In any event, the Court of Appeal is not the appropriate forum to hear such an application.

The second alternate basis for jurisdiction was said to be provided by s 109 of the Justices Act. That section provides:

The Director submitted that s 109 merely stated the orders the Court could make in an appeal where it had jurisdiction. The section in itself did not confer jurisdiction. Further the Director argued that s 109 appeared in the Part of the Act that created a regime for appeals from the Local Court to a single judge of the Common Law Division. It did not concern appeals or purported appeals from the District Court to the Court of Appeal.

I agree. Section 109 of the Justices Act does not confer on this Court jurisdiction to hear an appeal from the District Court.

That leaves the question as to what should happen to these proceedings. As I have said, in the normal course the appeal would be dismissed. Counsel for the Director recognised that X could seek to have the decision of Black DCJ quashed by filing a summons for prerogative relief. However, as pointed out in Druett the relief which can be obtained in that regard is limited and in any event would leave the decision of Mr Zdenkowski standing. For X to achieve his aim of having that decision set aside, he would have to seek to challenge that decision also. I have not considered and make no comment as to whether X would be successful if he did bring such application.

I indicated to the parties during the course of the hearing, that rather than simply dismiss the appeal, I would consider whether it would be appropriate to remit the matter to the Common Law Division of the Supreme Court to enable X to have the matter put on the correct legal footing. That would require him to file an amended document in the form of a summons seeking to have the decision of Black DCJ quashed. He could if he wished, join the magistrate in that summons, so that both decisions could be dealt with at the same time.

I have decided to follow that approach for the reason that X has come to the Court seeking relief, having been misguided into thinking the Court had jurisdiction. However, I have to stress that bringing an application to the Court does not mean that it will necessarily be successful. X would still have to establish he had grounds for the relief sought.

It should also be noted that the opponent is at any point able to initiate fresh proceedings in the Children’s Court. Again I make no comment as to whether such a step would be successful.

Accordingly, I propose the following orders: