Reported Decision : [2001] ACL Rep 205 NSW 12 New South Wales Court of Appeal CITATION : Druett v. Director-General of Community Services [2001] NSWCA 126 revised - 7/05/2001 FILE NUMBER(S) : CA 40380/00 HEARING DATE(S) : 26 April 2001 JUDGMENT DATE : 26 April 2001 PARTIES : Garry Druett - claimant Director-General of Community Services - opponent JUDGMENT OF : Giles JA at 1,21; Hodgson JA at 2; Ipp AJA at 22 LOWER COURT JURISDICTION : District Court LOWER COURT DC7856/99 FILE NUMBER(S) : LOWER COURT Naughton DCJ JUDICIAL OFFICER : COUNSEL : The claimant appeared in person Mr. G. Moore for opponent SOLICITORS : I.V. Knight, Crown Solicitor, Sydney for opponent CATCHWORDS : ADMINISTRATIVE LAW - APPEALS - Appeal to District Court under Children (Care & Protection) Act 1987 - Whether further appeal to Supreme Court - Whether certiorari available. LEGISLATION CITED : Children (Care & Protection) Act 1987, s.81 District Court Act ss.127, 148 Glenvill Homes Pty. Ltd. v. The Builders Licensing Board [1981] 2 NSWLR 688 Coles v. Bourke (1987) 10 NSWLR 429 CASES CITED: Cook v. Head [1976] 1 NSWLG 176 Hudson v. South Sydney Municipal Council (1981) 46 LGRA 128 Victims Compensation Fund Corp v. District Court of NSW (1997) 92 ACrimR 224. DECISION : Notice of Motion dismissed. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 040380 DC7856/99 GILES JA HODGSON JA IPP AJA Thursday 26 April 2001 DRUETT V. DIRECTOR-GENERAL OF COMMUNITY SERVICES JUDGMENT 1 GILES JA: I with ask Justice Hodgson to deliver the first judgment. 2 HODGSON JA: There is before the Court a notice of motion filed on 22 September 2000, in which the claimant Garry Druett seeks an order reviewing the decision of Registrar Irwin, and seeks a date for half a day before the Full Bench of the Court of Appeal. The decision of Registrar Irwin is a decision given on 4 September 2000, dismissing an appeal brought by Mr Druett from a judgment of the District Court dated 3 May 2000. 3 When the matter was called, Mr Druett told us that his purpose today was to have us review the District Court decision, that is the decision of Judge Naughton of that Court. However, that would not be possible unless there were a valid appeal before us. As things stand, Mr Druett's appeal has been dismissed, so that essentially the only question that can be before us today is the question of whether Registrar Irwin was correct in dismissing the appeal. 4 I will give a short history of how the matter came to this court. 5 Mr Druett is the father of four children born between 1991 and 1995. It appears that in January 1998, the Director-General of the Department of Community Services removed those children from the care of Mr Druett and his wife, alleging that they were in need of care within the meaning of the Children (Care and Protection) Act (1987). On 16 January 1998, it appears that an order was made in the Children's Court that the children were in need of care. 6 Between October 1998 and October 1999 there was a hearing in the Children's Court, which apparently took about eleven hearing days, to determine what order should be made under the Children (Care and Protection) Act. On 14 October 1999, the magistrate, J.A. Huber, ordered that the eldest child be made a ward for five years, and that the other three children be made wards until they attained the age of eighteen years. 7 Mr Druett appealed from that decision to the District Court. In March 2000, the appeal was heard for four days in the District Court by Judge Maguire, and then it was discontinued to be heard before another judge. On 3 April 2000, the hearing of the appeal commenced again before Judge Naughton and it was heard over twelve days. On 3 May 2000, Judge Naughton dismissed the appeal in relation to the three younger children, but varied the order in relation to the eldest child by extending the order for wardship until she attained the age of eighteen years. Judge Naughton also ordered Mr Druett to pay the costs of the Director-General and for the representation of the children in respect of the hearing for him. 8 On 24 May 2000, Mr Druett lodged a notice of appeal to the Court of Appeal. The grounds set out in that notice were as follows: "the judge's findings and decision is wrong and too severe, he was clearly biased in favour of the Crown and I feel acted corruptly in reaching his decision." 9 On 4 September 2000, Registrar Irwin heard an application by the Director-General to strike out the appeal on the ground that no appeal, lay from the District Court decision. It is that decision which is in question in the notice of motion which is before the Court. 10 The appeal to the District Court was provided by s.81 of the Children (Care and Protection) Act (1987) which is in the following terms: 81(1) Any person who is dissatisfied with a decision of the Children's Court under this Part may, in accordance with the rules of the District Court, appeal to the District Court against the decision. (2) An appeal may not be taken by the Director-General except on a question of law. (3) An appeal shall be by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence on which the decision was made, may be given on the appeal. (4) In addition to any functions and discretions that the District Court has apart from this section, the District Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions that the Children's Court has under this Part. (4A) Without limiting the generality of subsection (4), the District Court may confirm, vary or set aside the decision of the Children's Court. (5) The decision of the District Court in respect of an appeal shall be deemed to be the decision of the Children's Court and shall be given effect to accordingly. (6) Subject to any interlocutory order made by the District Court, an appeal does not affect the operation of the decision appealed against or prevent the taking of action to implement that decision. (7) The provisions of Division 3 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 Division. 11 In the District Court Act, there is provision for an appeal to the Court of Appeal from the District Court in s.127 of that Act, but only in respect of what is called "an action". That is defined in s.4 of the Act to mean, "an action in the Court but does not include a proceeding under Division 8 of Part 3 or under Part 4". In fact s.132, which is the first section in Division 8 of Part 3, makes it clear that, subject to the Act and rules, nothing in the earlier Divisions of that Part, which include s.127 relating to appeal, apply to proceedings under Division 8. 12 There are several decisions of this Court which establish that a statutory appeal to the District Court, of the kind provided by s.81 of the Children (Care and Protection) Act, is not an action from which an appeal to this Court lies pursuant to s.127 of the District Court Act. Those decisions are Cook v Head [1976] 1 NSWLR 176, Hudson v South Sydney Municipal Council (1981) 46 LGRA 128, and Victims Compensation Fund Corporation v District Court of New South Wales (1997) 92 ACrimR 224. 13 In the last case, Cole JA expressed the view that such appeals fall within the special civil jurisdiction of the District Court provided for by Part 3 Division 8 Subdivision 4 of the District Court Act. For myself, I am not certain that statutory appeals are within that subdivision, which appears to relate to jurisdiction conferred on Courts of Quarter Sessions prior to 1 July 1973. It seems to me that such statutory appeals are not within any provision of the District Court Act: rather the jurisdiction to hear them is given by the Act providing for the appeal, in this case the Children (Care and Protection) Act. In any event, that view leads to the same result, that no appeal to this Court lies from the decision of the District Court in this case. 14 For that reason, it seems clear to me that Registrar Irwin was correct in his decision. 15 However I would add that this does not mean that there is no possibility of any challenge whatsoever to decisions of the District Court in such appeals. 16 Section 148 of the District Court Act provides that except as provided by that Act proceedings "shall not be removed out of the court by appeal, motion or otherwise". However, it has been decided that this does not prevent the Supreme Court making an order in the nature of certiorari, calling up a record for the purpose of quashing it: see Glenvill Homes Pty. Ltd. v. The Builders Licensing Board [1981] 2 NSWLR 688, Coles v Bourke (1987) 10 NSWLR 429. However, the remedy of certiorari is available on narrower grounds and is more difficult to obtain than a remedy of appeal. In fact, it can be granted only if it is shown that there was either a lack of jurisdiction in the District Court, or a denial of natural justice, or an error of law on the face of the record. Furthermore, the only relief that can be given by certiorari is the quashing of the decision, which in this case would be the decision of Judge Naughton: that would leave standing the decision of Magistrate Huber, and there would need to be a further District Court hearing if Mr Druett still wished to challenge that decision. 17 I have carefully looked at the material which has been submitted to the Court by Mr Druett in connection with the notice of motion, to determine whether it would be proper to consider an application to substitute for the notice of appeal in this case an application for certiorari. The material submitted by Mr Druett included some employment records showing that he is in employment, a favourable report concerning the care of the children made in 1987 by an early intervention team, a number of photographs suggestive of happy family activities and appropriate accommodation, some school reports of the eldest child, some letters from that child suggesting that she wished to be returned to her parents, and a substitute care information sheet of 7 January 1998. 18 This does amount to some material which might support a case by Mr Druett against the wardship orders that have been made; but there have been two hearings before the Courts, one hearing in the Children's Court and one in the District Court, each of which took many days, and there must at those hearings have been evidence supporting the making of the wardship orders. 19 The material that has been submitted to this Court along with the application does not begin to suggest there is a ground for a remedy of certiorari based on any of the three matters to which I earlier referred. 20 So for those reasons, as well as dismissing the application for review of Registrar Irwin's decision, I would express the view that no material has been presented with the papers that the Court has to suggest that it is appropriate to consider substituting an application for certiorari. I would propose that the notice of motion be dismissed. 21 GILES JA: I agree. 22 IPP AJA: I also agree. CLAIMANT: Excuse me, this white folder was on the list, it was for you to consider and it was sent back last week. GILES JA: That will not really add to things, Mr Druett. You have heard what was said. You need two things. The first thing if you can do it is to get some legal advice. I do not know your circumstances and I can only say that on such an important matter as this if you can get legal advice you much try and get it. That legal advice can then consider whether there is the alternative way of achieving some remedy of the kind suggested by Mr Justice Hodgson. That's what you must do now if you wish to look forward. HODGSON JA: Have you approached the Bar Association or the Law Society in connection with their de bono schemes? CLAIMANT: I've gone to the Law Society. I was there today at lunchtime. HODGSON JA: Well perhaps you could also try the Bar Association, they have a de bono scheme that you may be able to get someone allocated to give you some advice on this from the Bar Association but we can't suggest any more than that I'm afraid. CLAIMANT: I'll put it simply, their case is based on fabrication and I guess they say that I'm a heroin addict, that I'm mad, I'm crazy and I'm not. My kids are the innocent victims of something that's political that went wrong at the start. Before we were represented and the lawyer just fed us to the sharks. By the end of the day the magistrate could only look at it from a placement, and we were convicted, look to sentence. GILES JA: Well regrettably from your point of view there is nothing that we can do for you here today, Mr Druett. As you have heard, the application to review the decision of Registrar Irwin has been dismissed which means that his decision that your appeal should be dismissed stands. MOORE: Your Honour, there is just one other matter, and that is the question of costs. GILES JA: You're not going to do that are you? MOORE: Well I wish to just make a formal application, your Honour. I don't wish to say anything else. IPP AJA: I really don't understand the attitude of-- GILES JA: I think you should get some instructions not even to make a formal application, Mr Moore. Would you see if you can get them? MOORE: I withdraw that application. ********** 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.