Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Zaksaw Pty Ltd v Gudu [2024] NSWCA 296 Hearing dates: 6 December 2024 Decision date: 06 December 2024 Before: Leeming JA at [1], [26]; Mitchelmore JA at [24]; McHugh JA at [25] Decision: The summons filed on 24 September 2024 is dismissed with costs. Catchwords: ADMINISTRATIVE LAW – judicial review – supervisory jurisdiction over District Court determining criminal appeals – review limited by s 176 of District Court Act 1973 (NSW) to jurisdictional error – whether error in construing offence provision jurisdictional – whether error jurisdictional if question of construction is "core" issue in prosecution – no jurisdictional error established – inappropriate to determine questions of construction Legislation Cited: Children (Education and Care Services National Law Application) Act 2010 (NSW), s 4 Children (Education and Care Services) National Law (NSW), s 167 Crimes (Appeal and Review) Act 2001 (NSW), s 11 District Court Act 1973 (NSW), s 176 Cases Cited: ABC Developmental Learning Centres Pty Ltd v Wallace (2007) 16 VR 409; [2007] VSCA 138 Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 Eberstaller v Poulos (2014) 87 NSWLR 394; [2014] NSWCA 211 Federated Engine Drivers and Firemen's Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398; [1911] HCA 31 Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115 Jamal v Director of Public Prosecutions (NSW) [2019] NSWCA 121 Lazarus v Independent Commission Against Corruption (2017) 94 NSWLR 36; [2017] NSWCA 37 LDF Enterprise Pty Ltd v State of New South Wales (2017) 95 NSWLR 70; [2017] NSWCA 89 Morgan v District Court of New South Wales (2017) 94 NSWLR 463; [2017] NSWCA 105 MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 Vok v Director of Public Prosecutions (NSW) [2019] NSWCA 242 W O v Director of Public Prosecutions (NSW) [2009] NSWCA 370 Category: Principal judgment Parties: Zaksaw Pty Ltd (First applicant) Stefania Giacchi (Second applicant) Sharon Gudu, in her role as the Executive Director Quality Assurance and Regulatory Services, Early Childhood Education, Department of Education (First respondent) District Court of New South Wales (Second respondent) Representation: Counsel: M Higgins with M Hunter (Applicants) Z Heger SC with H Rogers (First respondent) Solicitors: GMH Legal (Applicants) Crown Solicitor's Office (First respondent, second respondent (submitting)) File Number(s): 2024/00355451 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 28 June 2024 Before: Kumar DCJ File Number(s): 2020/00326152 and 2020/00326144 [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.] EX TEMPORE JUDGMENT 1. LEEMING JA: The moving parties on the summons before the Court are Zaksaw Pty Ltd and Ms Stefania Giacchi. Zaksaw owns and operates the "Rise and Shine Kindergarten and Childcare Service" at Carlton in Sydney, and Ms Giacchi is its "nominated supervisor" for the purposes of the Children (Education and Care Services) National Law (NSW), to which I shall refer as the "National Law", and which in fact is a schedule to a Victorian statute made applicable as a law of New South Wales by s 4 of the Children (Education and Care Services National Law Application) Act 2010 (NSW). Section 167 of the National Law relevantly provides: 167 Offence relating to protection of children from harm and hazards (1) The approved provider of an education and care service must ensure that every reasonable precaution is taken to protect children being educated and cared for by the service from harm and from any hazard likely to cause injury. … (2) A nominated supervisor of an education and care service must ensure that every reasonable precaution is taken to protect children being educated and cared for by the service from harm and from any hazard likely to cause injury. … 1. It was an agreed fact that on 14 October 2019 a 9 month old child enrolled at the childcare centre was injured by hot water spilt during an activity involving mixing corn flour with hot and cold water and food dye. Proceedings were commenced by the respondent against Zaksaw and Ms Giacchi, alleging each was guilty of an offence under s 167(1) and (2) respectively. There was a three day hearing in the Local Court following which both were found guilty. Fines of $3,000 and $600 were imposed and in addition, Zaksaw was ordered to pay $9,000 and Ms Giacchi $6,000 towards the prosecutor's costs. 2. Both offenders appealed from those convictions, pursuant to s 11 of the Crimes (Appeal and Review) Act 2001 (NSW), to the District Court. There were two grounds of appeal. The first was that "the Magistrate incorrectly applied the statutory duty to ensure that 'every reasonable precaution is taken' as a duty to ensure a state of safety in its attribution of the acts of employees to employers". The second was that "the Magistrate incorrectly applied the reasoning in ABC Development Learning Centres Case to the legislation in which the offence provision arises in determining the availability of the 'reasonable steps' defence". The reference was to ABC Developmental Learning Centres Pty Ltd v Wallace (2007) 16 VR 409; [2007] VSCA 138. 3. There was a hearing on 26 and 27 February 2024 resulting in a substantial judgment of 40 pages delivered on 28 June 2024. Each of the appeals was dismissed, and the orders of the Local Court confirmed. 4. The District Court judge carefully reproduced the parties' submissions on each ground (at [70]-[89], and [108]-[121]), and resolved them (at [90]-[107] and [122]-[131]). Both were questions of statutory construction. Her Honour concluded that, contrary to the submissions advanced by Zaksaw and Ms Giacchi, both provisions created absolute liability offences. 5. No further appeal lies from the District Court exercising jurisdiction determining an appeal from the Local Court pursuant to the Crimes (Appeal and Review) Act. Nonetheless, Zaksaw and Ms Giacchi invoked this Court's supervisory jurisdiction and filed, on 24 September 2024, a summons seeking orders in the nature of certiorari setting aside the judgment and orders of the District Court and remitting the proceedings to the District Court to determine their appeals against conviction according to law. They also sought costs. 6. The summons identified a single ground of review: Judge Kumar's decision involved jurisdictional error/error of law on the face of the record in that her Honour erred in applying section 167 of the Children (Education and Care Services) National Law 2010 (NSW) such that the failure of an approved provider or nominated supervisor to take every reasonable precaution can be proved merely by any act or omission of their staff members. 1. The parties exchanged written submissions in advance of the hearing. Those filed by Zaksaw and Ms Giacchi dated 1 October 2024 proceeded expressly on the basis that the District Court's decision was affected by an error of law. They said that (at paragraphs 6 and 27): In now seeking judicial review of the District Court's decision, the applicants pursue only one ground of review. This ground concerns the construction of section 167 of the National Law and in particular whether the failure of "approved providers" or "nominated supervisors" to discharge their duties under this section can be proved by reference to any act or omission of the persons whom they employ or supervise. The applicants contend that the decision of the District Court, in particular at [99], [115] and [127]-[128] of its published reasons, was affected by the wrong answer to this question. … The applicants' contention is that the District Court erred in considering that either an approved provider or a nominated supervisor could breach their duty under section 167 simply by virtue of any act or omission of a staff member at their education and care service. 1. The submissions proceeded to give four textual and contextual reasons for this construction of s 167 and sought to develop the proposition that "there are passages in the District Court's reasons that suggest an understanding of section 167 that is inconsistent with the contention now advanced by them". (The submissions, quite fairly, recognised that the points now sought to be agitated had not been relied upon, or had not been squarely relied upon, in the District Court.) 2. The first respondent's response to summons filed on 4 November 2024, in answer to the grounds of review, denied any error in construction, and said "further that (i) by reason of s 176 of the District Court Act 1973 (NSW), the supervisory jurisdiction of the Supreme Court in the present case is limited to review for jurisdictional error; and (ii) if her Honour erred in law in construing or applying s 167, any such error was not jurisdictional". 3. The first respondent supplied written submissions on 15 November 2024, which accorded with the response, in that they not only maintained the correctness of the construction applied by the District Court, but in addition contended (in paragraphs 5 and 33-40) that there was no jurisdictional error. There was said to be no jurisdictional error for two reasons. The first was that if it were necessary to identify a failure by the appellants personally to take reasonable precautions to protect children from harm, the Local Court's findings concerned just such a failure. Secondly, they contended that "the unstated premise of the applicant's case is that a material error in the District Court's construction of s 167 would be a jurisdictional error. That premise is not the subject of any supporting submissions. It should not be accepted". The submissions cited what a unanimous High Court had explained in Craig v South Australia (1995) 184 CLR 163 at 179; [1995] HCA 58 that "the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it had jurisdiction to determine" and that it followed that an incorrect decision on a question of law by an inferior court does not ordinarily constitute jurisdictional error. The submissions relied on decisions of this Court, including Lazarus v Independent Commission Against Corruption (2017) 94 NSWLR 36; [2017] NSWCA 37 at [38]-[39] and Vok v Director of Public Prosecutions (NSW) [2019] NSWCA 242 at [14]-[16] that "an erroneous application of the criminal law in the course of criminal proceedings would not generally demonstrate jurisdictional error". By reference to Lazarus at [39], it was submitted that it was "necessary … for [the] misconstruction to result in the court stepping outside the limits of what it was authorised to do". 4. The submissions contended that to allege that the District Court "misapplied the applicable statutory test" for an offence in disposing of the appeal was not to allege jurisdictional error. 5. Appropriately, by submissions filed on 25 November 2024, Zaksaw and Ms Giacchi sought to explain how acceptance of their submissions would result in error which was jurisdictional. They acknowledged, consistently with the authorities cited by the first respondent and other authorities, that they needed to establish jurisdictional error. 6. That concession was constructive, and properly made. It is well settled that this Court's supervisory jurisdiction over decisions of the District Court determining a criminal appeal, to which s 176 of the District Court Act applies, is limited to jurisdictional error. This Court has repeatedly held that it is not sufficient to identify error of law on the face of the record as a basis for quashing or setting aside such an order of the District Court: see for example (and without intending to be exhaustive) Jamal v Director of Public Prosecutions (NSW) [2019] NSWCA 121 at [8]; Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115 at [10] and Morgan v District Court of New South Wales (2017) 94 NSWLR 463; [2017] NSWCA 105 at [10]. Litigants seeking to invoke this Court's supervisory jurisdiction in respect of criminal appeals determined by the District Court need to bear firmly in mind, as has been reiterated repeatedly over the last two decades, that only if they allege and make out jurisdictional error can their application succeed. 7. Zaksaw and Ms Giacchi further accepted that "some and perhaps many" errors of statutory construction do not reveal jurisdictional error. They then contended: If the Court of Appeal agrees with the applicant's contention on the construction of s 167, the error made by the District Court must be seen as in the nature of a 'misconstruction; and therefore a "misconception" of the nature of that Court's functions, rather than an error concerning the "application" of the legislation. That is because the error goes to the very scope of liability for which section 167 of the National Law provides and the manner in which that liability can be established. 1. That was the extent of submissions on jurisdictional error in the written submissions supplied in advance of the hearing. In oral submissions, Mr Higgins who with Mr Hunter appeared for the applicants referred to passages from Craig and Lazarus mentioned above, as well as to W O v Director of Public Prosecutions (NSW) [2009] NSWCA 370 at [14] ("An erroneous application of the criminal law in the course of criminal proceedings will not generally demonstrate jurisdictional error"), and acknowledged, very properly, that the District Court had authority to decide questions of law. He maintained that the error was one of construction of law, rather than its application, and that because the issue was so significant, that it could fairly be described as the "core" issue, that was sufficient for it to amount to jurisdictional error. He then said that that was as high as his case could be put. 2. Ms Heger SC, who appeared with Mr Rogers for the first respondent, contended that the error identified by the applicants was really an error of application rather than construction, but added that whichever it was, it fell short of amounting to jurisdictional error. 3. Both sides supplied written submissions directed to the construction of s 167 and the authorities upon it, and both sides elaborated on those submissions in oral address. Those submissions need not be summarised. That is because the "first duty" of this Court is to determine its own jurisdiction: Federated Engine Drivers and Firemen's Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398 at 415; [1911] HCA 31; Eberstaller v Poulos (2014) 87 NSWLR 394; [2014] NSWCA 211 at [1] and [14]. This Court has a general obligation to determine controversies within its jurisdiction, while it has no authority to determine matters outside its jurisdiction (in stating those general propositions, I am passing over exceptional doctrines such as forum non conveniens when a court may decline to determine a matter and cases where jurisdiction is doubtful and it may be appropriate to express a view on a proposition notwithstanding the Court considers it lacks jurisdiction against the possibility that it is wrong, as in LDF Enterprise Pty Ltd v State of New South Wales (2017) 95 NSWLR 70; [2017] NSWCA 89 at [24]). 4. I do not accept Zaksaw's and Ms Giacchi's submission that there is a case of jurisdictional error. There are undoubtedly cases where determining whether or not an error is jurisdictional is hard. But this is not one of them. As authority has repeatedly reiterated, the existence of jurisdictional error turns on whether the District Court has stepped outside the limits of what it was authorised to do. It is "no more and no less than that the decision-maker exceeded the limits of the decision-making authority conferred by the statute in making the decision": MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 at [29]. 5. The District Court did not exceed the limits of its authority. To the contrary, the District Court resolved the questions of construction which were elaborately advanced. In doing so, it was exercising the jurisdiction conferred upon it, including its undoubted jurisdiction to decide questions of law. It is not to the point that the question of the construction of 167 was "core" or highly significant to the outcome of the case, or was the only issue that was in play. The District Court had authority to decide that question of construction, and to apply it to the facts. There could be no dispute that the District Court was itself determining whether the prosecutor had established whether each offence charged had been proven, to the criminal standard, in accordance with the function conferred on it by the Crimes (Appeal and Review) Act. 6. I do not think it is appropriate to express views on the construction of the provision in circumstances where s 176 restricts this Court's jurisdiction to determining whether or not the District Court has exceeded the limits of its own authority, and it has, quite plainly, not done so. 7. The summons must be dismissed. Further, the proceedings in this Court being civil in nature, the ordinary consequence of lack of success will be an adverse costs order. That is the order sought by the first respondent. 8. I propose that the summons filed on 24 September 2024 be dismissed, with costs. 9. MITCHELMORE JA: I agree with the order proposed by Leeming JA and with his Honour's reasons. 10. McHUGH JA: I agree with the order proposed by Leeming JA and with his Honour's reasons. 11. LEEMING JA: The order of the Court is "The summons filed on 24 September 2024 is dismissed with costs". ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 December 2024