S v Department of Community Services [2002] NSWCA 151

New South Wales Court of Appeal

CITATION : S v Department of Community Services [2002] NSWCA 151 FILE NUMBER(S) : CA 40110/02 HEARING DATE(S) : 7 May 2002 JUDGMENT DATE : 23 May 2002

PARTIES : Richard S Department of Community Services JUDGMENT OF : Heydon JA at 1; Hodgson JA at 2; Davies AJA at 3

LOWER COURT JURISDICTION : Supreme Court LOWER COURT 13613/01 FILE NUMBER(S) : LOWER COURT Kirby J JUDICIAL OFFICER :

COUNSEL : Applicant in person Mr P Singleton for the Respondent SOLICITORS : Applicant in person Crown Solicitors for the Respondent CATCHWORDS : Judicial Review - whether Children's Court failed to consider properly an application for leave to apply for rescission or variation of a care order - whether Court's approach unduly technical - whether failure to take account of material circumstances - whether immaterial circumstances taken into account - Appeals - whether District Court has jurisdiction to hear an appeal from a decision of the Children's Court refusing leave to apply for rescission or variation of a care order Children (Care and Protection) Act 1987, s15, s72, s81 LEGISLATION CITED : Children and Young Persons (Care and Protection) Act 1998, s60, s61, s71, s74, s75, s76, s90, s91 Supreme Court Act 1970, s48, s69, s101 Craig v State of South Australia (1995) 184 CLR 163 Director of Public Prosecutions v Yalda (unreported NSW Court of Appeal, 4 September 1998) Minister for Immigration and Multicultural Affairs v Singh (2002) 76 ALJR 514 CASES CITED: Palmer v Haddad [2000] NSWSC 545 "R" v Department Of Community Services [2001] NSWSC 419 Re Nerida [2001] NSWSC 1196 S v Dept of Community Services [2001] NSWCA 219 S v Director-General of the Department of Community Services [2001] NSWCA 413 DECISION : 1. Leave to appeal against the order of dismissal by Kirby J on 17 December 2001 be granted; 2. The appeal be allowed; 3. The order of dismissal by Kirby J on 17 December 2001 be set aside and in lieu thereof it be ordered: (i) The order of the Children's Court made on 3 September 2001 on Richard S's application for leave be removed into this Court and quashed; (ii) The matter of Richard S's application for leave be reheard in the Children's Court by a different Magistrate; 4. It be declared that the District Court of New South Wales had jurisdiction to hear and determine Richard S's appeal against the aforementioned order of the Children's Court; 5. Liberty be reserved to Richard S to apply in relation to costs.