Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Director-General, Family and Community Services re Felicity [2012] NSWCA 272
• Hearing dates: 27 August 2012
• Decision date: 27 August 2012
• Before: Barrett JA

Decision

1. Order that the amended notice of appeal filed on 12 June 2012 be struck out in its entirety.

2. Order that the person named as appellant in the amended notice of appeal filed on 12 June 2012 pay the costs of the Director-General, Family and Community Services of the notice of motion determined by me today.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: PROCEDURE - Court of Appeal - care proceedings in respect of child - orders made by President of Children's Court and in Equity Division of the Supreme Court - purported appeals against such orders - whether leave to appeal needed re Supreme Court orders - whether appeal against order made by President of Children's Court lies to Court of Appeal or Equity Division - all appeals struck out as incompetent
• Legislation Cited: Children and Young Persons (Care and Protection) Act 1998, s 91; Children's Court Act 1967, ss 4, 13, 22A; Children's Court Regulation 2009, Part 1, sch 8, reg 5; Civil Procedure Act 2005, ss 14, 56, 57, 58; Supreme Court Act 1970, ss 48, 63, 101(1)(a), 101(2),; Uniform Civil Procedure Rules 2005, rr 51.10, 51.12
• Cases Cited: GKD v Director General, Attorney General's Department [2012] NSWCA 219; Re DG and the Adoption Act 2000 [2007] NSWCA 241; Council of the Municipality of Woollahra v Sved [1998] NSWCA 63
• Category: Interlocutory applications
• Parties: Mother - Appellant; Director-General, Family and Community Services - First Respondent/Applicant; Father - Second Respondent
• Representation: Mr G Potkonyak - Appellant; Ms K Richardson - First Respondent (and mentions for Second Respondent); Ms M Neville - Independent Legal Representative of Child; Capellia Legal - Appellant; I V Knight, Crown Solicitor - First Respondent/Applicant
• File Number(s): 2012/152846

Judgment

1 The matters before the Court arise from care proceedings in respect of a nine year old girl to whom the pseudonym "Felicity" has been given. I will avoid references to the names of the child and her parents.

2 Aspects of the proceedings have been heard in both the Children's Court and the Equity Division of the Supreme Court.

3 The Director-General Department of Family and Community Services was a party to and active in all aspects of those proceedings.

4 An order was made by the Children's Court in October 2009 allocating parental responsibility for the child to the natural father. In October 2011, the mother applied to the Children's Court for recision or variation of that order. That application was heard by the President of the Children's Court, `Judge Marien SC, and dismissed, apparently on the application or with the consent of the mother herself. Judge Marien made an order for costs against the mother.

5 In December 2011, the mother filed a summons in the Supreme Court seeking two forms of relief. Certain claims were advanced under the parens patriae aspect of equitable jurisdiction. There were also claims for declaratory and related relief.

6 The parens patriae claims were heard by Slattery J and dismissed with costs on 22 December 2011. The residue of the summons of December 2011 concerning claims for declaratory and related relief in respect of the decision of the Children's Court was heard by White J on 1 May 2012 and dismissed with costs.

7 The mother has filed a notice of appeal which, in its amended form of 12 June 2012, seeks substantive orders as follows:

1. An order setting aside White J's orders of 1 May 2012.

2. An order setting aside the costs order of Slattery J.

3. An order setting aside a costs order of the Children's Court.

4. An order for costs against the Director-General.

8 The claims of the mother are opposed by the Director-General who, in turn, has filed a notice of motion seeking to have the amended notice of appeal struck out as incompetent. It is that notice of motion that is now before me. The Director-General's application is supported by the independent legal representative of the child.

9 The contentions of the Director-General are briefly as follows. First, as to the orders made by White J, being orders of the Supreme Court in a Division, the Director-General says that the mother cannot appeal except by leave since the orders do not involve a matter at issue or a claim, demand or question which amounts to or has a value of $100,000 or more. Reliance is here placed on s 101(2)(r) of the Supreme Court Act 1970.

10 Second, as to the costs order made by Slattery J, also an order made by the Supreme Court in a Division, the Director-General says that there can be no appeal except by leave (which, I might say, seems to be recognised in the amended notice of appeal, despite the fact that no summons seeking leave to appeal has been filed). The need for leave to appeal where a costs order only is challenged comes from s 101(2)(c) of the Supreme Court Act. The Director-General also points out that, having regard to rule 51.10(2) of the Uniform Civil Procedure Rules, there is a need for an order extending time for the filing of a summons for leave to appeal and there has been no application for an extension of time.

11 Third and in relation to the aspect of the amended notice of appeal challenging the costs order of the Children's Court, the Director General maintains that there is no right of appeal to the Court of Appeal, whether with or without leave.

12 I shall consider these matters in turn.

13 In relation to the purported appeal by the mother against the orders of White J, the Director-General argues, as I have said, that leave is required because the $100,000 threshold requirement imposed by s 101(2)(r) of the Supreme Court Act is not satisfied. The mother's response advanced by her solicitor, Mr Potkonyak, is that the subject matter is incapable of having any monetary value or amount and that, for that reason, s 101(2)(r) should be regarded as inapplicable and inoperative. A second argument is as follows: s 101(1)(a) provides that an appeal shall lie to the Court of Appeal from any judgment or order of the Supreme Court in a Division subject to the Supreme Court Act itself and "any other Act", so that s 101(1)(a) operates subject to the provisions of the Civil Procedure Act 2005 which, in ss 56, 57 and 58, lays down objectives of the just, quick and cheap resolution of disputes. It follows, so the argument runs, that, as the just, quick and cheap resolution of the appeal the mother wishes to bring will be facilitated by omitting any requirement for leave to appeal, that requirement should be regarded as overborne. The mother also advances a third argument to which I shall come.

14 As to the incapacity, as it were, of the subject matter to bear any monetary value or amount, the Director-General refers to the decision of this Court in Re DG and the Adoption Act 2000 [2007] NSWCA 241. The order challenged there was an order of the Supreme Court in a Division dismissing an application for the adoption of a child. The disappointed applicant purported to appeal to the Court of Appeal and put forward the same argument as the mother in this case as to the absence of any need for leave to appeal. The argument was stated by Handley JA at [20], as follows:

"Mr Anderson for the Appellants argued that an appeal which could never satisfy para (r), because it was not about money or property, was not affected by the monetary limit and lay as of right."

15 Handley JA dealt with that argument at [21] in these terms:

"The suggested construction is contrary to the scheme of s.101(2)(r) which bars all appeals as of right unless the monetary threshold is satisfied. It is also inconsistent with Clyne v NSW Bar Association (1960) 104 CLR 186, 205. Mr Clyne's right to remain on the roll of barristers was not property, and was incapable of being valued. The High Court held that he therefore needed special leave because the monetary threshold for appeals as of right was not satisfied. The Court's reasoning is equally applicable to s.101(2)(r) of the Supreme Court Act. The fact that para (r) and other paragraphs of sub-section (2) overlap does not assist the Appellants."

16 Precisely the same approach was taken to precisely the same issue just a few weeks ago in GKD v Director General, Attorney General's Department [2012] NSWCA 219, a decision of Campbell and Meagher JJA.

17 The absence or lack of monetary amount or monetary value does not cause the s 101(2) barrier to be neutralised. It causes the barrier to operate.

18 As to the second argument of the mother - the argument based on the Civil Procedure Act provisions - the answer is that it simply does not work as a matter of words. Section 101(1)(a) of the Supreme Court Act says that an appeal lies to the Court of Appeal from a judgment or order of the Supreme Court in a Division but that this is subject to "this and any other Act". Section 101(2) then enumerates cases in which an appeal does not lie to the Court of Appeal except by leave of the Court of Appeal. The provisions of the Civil Procedure Act concerning the overriding purpose of just, quick and cheap resolution of the real issues in proceedings have substantive operation at several levels. Under s 56(2) the Court must seek to give effect to the overriding purpose "when it exercises any power given to it" by the Civil Procedure Act or the rules of court or when it interprets any provision of the Civil Procedure Act or the rules of court. Section 57 makes the overriding purpose relevant to the management of proceedings. Section 58 is also concerned with case management. Nothing in those provisions of the Civil Procedure Act has anything at all to say about the existence, nonexistence or qualified existence of a right of appeal to the Court of Appeal from a judgment or order of the Supreme Court in a Division. Those provisions simply do nothing to qualify or displace the negative prescription made by s 101(2).

19 It is necessary to deal next with a third argument put forward by the mother. It is based on the proposition that the matter heard and determined by White J, that is, by the Supreme Court in a Division, should have been dealt with by the Court of Appeal in the first instance (with the Supreme Court in a Division bypassed) and that some form of right of appeal without leave arises accordingly.

20 The mother made an application before White J for certain of her claims to be removed into the Court of Appeal. His Honour refused that application on 22 March 2012. The mother's argument in this respect is based on s 48(1)(a)(vii) and s 48(2)(g) of the Supreme Court Act and the fact that one matter in respect of which declaratory relief was sought was a decision of the Children's Court constituted by its President, Judge Marien, who also holds office as a judge of the District Court. The involvement of Judge Marien, it is said, caused the proceedings before White J to be proceedings for "reviewing" a decision of a "specified tribunal" as referred to in s 48(2)(g) of the Supreme Court Act so that the proceedings were properly assigned to the Court of Appeal (the matter "of specified tribunal" is one to which I shall return).

21 That issue was raised with White J. His Honour decided that all the remaining matters in the mother's summons should be heard by a judge of the Equity Division. He then proceeded to hear and determine the balance of the claims.

22 Let it be assumed that, having regard to s 48(2)(g) of the Supreme Court Act, the matter was properly within the province of the Court of Appeal. What follows? Section 51 of the Supreme Court Act deals with such cases. Section 51(1)(a) says that proceedings commenced in a Division are "well commenced" in the Division even though they are assigned to the Court of Appeal. Section 51(1)(b) provides for removal of the proceedings into the Court of Appeal by order of either the Supreme Court in a Division or the Court of Appeal and, importantly for present purposes, s 51(1)(d) says that, subject to any such removal order, the proceedings may be continued and disposed of in the Division.

23 It follows that, whatever may have been the correct position under s 48(2)(g), the orders made by White J in respect of the balance of the mother's summons were validly made as orders of the Supreme Court in a Division, from which it follows that appeal to the Court of Appeal is governed by s 101 in the way already discussed.

24 The overall conclusion in relation to the mother's challenge to the orders of White J is therefore that leave to appeal is required and has been neither granted nor sought. Those aspects of the amended notice of appeal will accordingly be struck out.

25 I consider next the purported appeal of the mother against the costs order made by Slattery J in the Equity Division. The amended notice of appeal appears to recognise the need for a grant of leave to appeal in this case in the way that I have already mentioned. That need arises, as I have said, from s 101(2)(c) of the Supreme Court Act but, of course, r 51.10 of the Uniform Civil Procedure Rules requires an application for leave to appeal to be by summons filed within a specified time or incorporating an application for extension of time; and, under r 51.12, a white folder in triplicate must be filed with the summons.

26 Because leave to appeal is needed and the procedures for seeking leave to appeal have not been followed (nor of course has there been any grant of leave), the aspects of the amended notice of appeal dealing with the costs order of Slattery J will be struck out.

27 The remaining matter concerns the costs order made by the Children's Court. The amended notice of appeal seems to reflect an assumption that leave to appeal is required under s 101(2)(c) of the Supreme Court Act; but that provision is concerned with a costs order made "in proceedings in the Court", that is the Supreme Court. The relevant proceedings were, of course, proceedings in the Children's Court so that the avenue of appeal is that created by s 91 of the Children and Young Persons (Care and Protection) Act 1998 as affected, in this case, by s 22A of the Children's Court Act and reg 5 of the Children's Court Regulation 2009.

28 Section 91 of the Children and Young Persons (Care and Protection) Act is as follows:

"(1) A party to proceedings who is dissatisfied with an order (other than an interim order) of the Children's Court may, in accordance with the rules of the District Court, appeal to the District Court against the order.

(2) An appeal is to be by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence on which the order was made, may be given on the appeal.

(3) Without limiting subsection (2), the District Court may, instead of taking fresh evidence, decide to admit as evidence the transcript of proceedings before the Children's Court and any exhibit tendered during those proceedings.

(4) In addition to any functions and discretions that the District Court has apart from this section, the District Court has, for the purposes of hearing and disposing of an appeal, all the functions and discretions that the Children's Court has under this Chapter or Chapter 6.

(5) Without limiting the generality of subsection (4), the District Court may confirm, vary or set aside the decision of the Children's Court.

(6) The decision of the District Court in respect of an appeal is taken to be the decision of the Children's Court and has effect accordingly.

(7) Subject to any interlocutory order made by the District Court, an appeal does not affect the operation of the order appealed against or prevent the taking of action to implement that order.

(8) The provisions of Chapter 6 apply to and in respect of the hearing of an appeal under this section in the same way as they apply to and in respect of the hearing of a care application under that Chapter."

29 Section 22A of the Children's Court Act provides:

"(1) In this section:

appeal includes the referral of any matter.

decision includes any order or judgment.

Presidential Children's Court means the Children's Court constituted by the President.

(2) An appeal to the District Court under any Act or other law in relation to a decision of the Presidential Children's Court is, despite the provisions of that Act or law, taken to be an appeal to the Supreme Court.

(3) Subsection (2) has effect only to the extent provided by the regulations.

(4) For the purposes of subsection (2), the provisions of any Act or law relating to appeals are subject to such modifications as may be prescribed by the regulations.

(5) The Governor may make regulations for the purposes of this section."

30 Regulation 5 of the Children's Court Regulation is:

"(1) An appeal or review under any of the following sections of the Children and Young Persons (Care and Protection) Act 1998 is, if the appeal or review relates to a decision of the Presidential Children's Court, taken to be an appeal to (or a review by) the Supreme Court and is subject to any relevant rules of court applying to appeals to (or reviews by) the Supreme Court:

(a) section 91 (Appeals),

(b) section 109V (Review of bail decisions),

(c) section 231K (Appeals),

(d) section 231O (Appeals).

(2) For the purposes of subclause (1), a reference to the District Court in section 91, 109V, 231C (1) (b), 231G (b), 231K or 231O of the Children and Young Persons (Care and Protection) Act 1998 is to be construed as including a reference to the Supreme Court."

31 The effect of these provisions is that the avenue of appeal against an order of the Children's Court, being an order of that court made by its President, who is a District Court judge, is to the Supreme Court rather than the District Court. The provisions do not specify where within the Supreme Court such an appeal is to be heard. It is necessary, therefore, to return to s 48 of the Supreme Court Act.

32 The mother contends that an appeal to the Supreme Court of the kind in question is allocated to the Court of Appeal by s 48(2)(f) because it is an "appeal from a specified tribunal". That raises the question whether what s 22A of the Children's Court Act refers to as "the Presidential Children's Court" is a "specified tribunal" as defined by s 48(1) of the Supreme Court Act.

33 The first thing to note about the definition of "specified tribunal" in s 48(1)(a) is that it refers to several judicial or quasi judicial bodies by name, including several courts constituted by statute as such. These bodies are listed in sub-paras (i) to (v). In sub-paras (vi) and (vii), there is then resort to more general descriptions.

34 The Children's Court is not among the specific courts and other bodies referred to in sub-paras (i) to (v). Sub-paragraph (vii) therefore raises the question whether what s 22A of the Children's Court Act calls the "Presidential Children's Court" (that is "the Children's Court constituted by the President") is "a body of persons" of the kind there mentioned. In my opinion it is not. Section 4 of the Children's Court Act constitutes the Children's Court of New South Wales as a court of record. Section 6 states that the Court "is composed of the President and such Children's Magistrates as are appointed under this Act". Section 6A empowers the Governor to appoint a qualified person as the President of the Children's Court and declares the qualification to be the holding of office as a judge of the District Court. Under s 13 the jurisdiction of the Children's Court may be exercised by the President, a Children's Magistrate or a Magistrate "sitting alone". These provisions prevent a finding that a decision of the President of the Children's Court is a decision of "a body of persons" as referred to in s 48(1)(a)(vii). It is a decision of a duly constituted court in the exercise of its jurisdiction by one of the judicial officers of whom it is composed (being its President) "sitting alone".

35 The next question is that posed by s 48(1)(a)(vi), that is, whether a decision of the Children's Court constituted by its President is a decision of "a judge...functioning...under any Act giving power to a judge...,whether as judge...or as a designated person".

36 The decision in question was made under the Children and Young Persons (Care and Protection) Act. That Act does not confer power on any judge, either as a judge or as a designated person. It confers powers on the Children's Court of New South Wales. When a relevant decision is duly made, it is a decision of that Court, not of the deciding judicial officer as an individual or an empowered person. This is, I think, emphasised by s 22A of the Children's Court Act which speaks of a decision of "the Children's Court constituted by the President", not to a decision of the President of the Children's Court.

37 In my opinion, therefore, the costs decision of the Children's Court constituted by its President, Judge Marien, was not a decision of a "specified tribunal" as defined by s 48(1)(a) of the Supreme Court Act, with the result that s 48(2)(f) does not assign to the Court of Appeal an appeal from the Children's Court in respect of that order.

38 An appeal to the Supreme Court under s 91 of the Children and Young Persons (Care and Protection) Act, as affected by s 22A of the Children's Court Act, being an appeal to the Supreme Court rather than the District Court, properly belongs in the Equity Division of the Supreme Court in accordance with Pt 1 of sch 8 to the Uniform Civil Procedure Rules.

39 Mr Potkonyak, the solicitor for the mother, made a submission in respect of all the relevant matters that I should somehow allow them to be pursued in the Court of Appeal despite the various obstacles to which reference has been made. In response to the question of the basis on which this could be done, he referred to s 14 of the Civil Procedure Act and s 63 of the Supreme Court Act. It is obvious that neither of those provisions is of any relevance; nor is it open to regard any oral application for leave to appeal as having been made by anything said in court today: see Council of the Municipality of Wollahra v Sved [1998] NSWCA 63.

40 Since there is no appeal to the Court of Appeal as of right in respect of any of the decisions the subject of the amended notice of appeal and since no steps have been taken to follow the procedures for seeking leave to appeal in those cases where an appeal may be brought to the Court of Appeal by leave, the appropriate course is that the amended notice of appeal filed on 12 June 2012 be struck out in its entirety. I so order.

[Submissions on costs]

41 The Director-General seeks a costs order against the mother, who has been unsuccessful today. It is said on the mother's behalf that she is in no financial position to meet any costs order and that her solicitor is acting for her pro bono.

42 It is unfortunate for her that those matters cannot influence the discretion of the Court on the question of costs in such a way as to displace the ordinary rule that costs should follow the event.

43 The Director-General has been brought to court in circumstances that have required the Director-General to make the application that I have heard today, which application has been wholly successful and has established that the purported appeal has no proper basis. The appropriate costs order is as the Director-General seeks.

44 I order that the person named as appellant in the amended notice of appeal filed on 12 June 2012 pay the costs of the Director-General, Family and Community Services of the notice of motion determined by me today.

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Decision last updated: 31 August 2012