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  4. CAO v Department of Child Safety - [2009] QCA 87

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CAO v Department of Child Safety[2009] QCA 87

CAO v Department of Child Safety[2009] QCA 87

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

CAO v Department of Child Safety and Others [2009] QCA 87

PARTIES:

CAO
(applicant)
v
DEPARTMENT OF CHILD SAFETY
(first respondent)
SEPARATE REPRESENTATIVE
(DAMIEN CARTER)
(second respondent)
HAS
(third respondent)
HAT
(fourth respondent)

FILE NO/S:

Appeal No 861 of 2009
Appeal No 862 of 2009
DC No 3186 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application – Civil

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

Orders delivered ex tempore on 3 April 2009
Reasons delivered on 9 April 2009

DELIVERED AT:

Brisbane

HEARING DATE:

3 April 2009

JUDGE:

McMurdo P

ORDERS:

Delivered ex tempore 3 April 2009

1.   Applicant's direction application is refused

2.   Costs to be assessed

3.   Reasons will be published later

CATCHWORDS:

PROCEDURE – COURTS AND JUDGES GENERALLY – COURTS – DISMISSAL OF PROCEEDINGS FOR WANT OF PROSECUTION – District Court dismissed applicant's appeal from the Children's Court – applicant applied for leave to appeal decision of the District Court – applicant had received three extensions to file, lodge and serve her materials – applicant applied for a further extension of time – if further extension was not granted applicant would be unable to file materials and because of an earlier order the case would be dismissed for want of prosecution – whether a further extension of time should be granted

COUNSEL:

J Selfridge for the first respondent

SOLICITORS:

The applicant appeared on her own behalf
Crown Law for the first respondent
Damien Carter of Carter Farquar Lawyers for the second respondent
Third respondent appeared on his own behalf
Third respondent appeared on behalf of fourth respondent

[1]  McMURDO P: These are my reasons for refusing the applicant's directions application with costs on 3 April 2009. 

Background

[2]  The applicant filed an application for leave to appeal on 27 January 2009.  The proposed appeal concerned a child protection order made in relation to the applicant's grandchildren in the Children's Court at Brisbane on 11 November 2008, granting short term guardianship of the children to the Chief Executive of the Department of Child Safety for a period of 12 months.  The first respondent to this application is the Department of Child Safety.  The second respondent is Mr Damien Carter, solicitor, who is providing separate representation for the children who are the subject of the order.  The third respondent is the children's father.  The fourth respondent is the children's mother.  The applicant appealed from the orders made in the Children's Court to the District Court.  After a two day hearing, the District Court judge reserved his decision and subsequently delivered his carefully considered 15 page reasons for dismissing the applicant's appeal and affirming the decision of the Children's Court.  The applicant now applies for leave to appeal under s 118 District Court of Queensland Act 1967 (Qld) from the District Court judge's order.

[3]  Prior to the lodgment of her application for leave to appeal, the Deputy Registrar (Appeals) granted the applicant's application to have her filing fees in this Court waived.  She, and the first to fourth respondents, were then informed of the timetable for the lodging and serving of material necessary to progress the application to hearing.  On 2 February 2009, the applicant asked registry officers for an extension of time to file, lodge and serve her material.  She supplied a doctor's certificate from Associate Professor David H Bryant stating that she had been referred to him because of breathlessness; her x-rays showed abnormalities on her lung function which required further investigation; she was unable to travel to Brisbane in the next few weeks and more tests had to be completed for a treatment plan to be developed.  The Deputy Registrar (Appeals) granted the applicant's request on 3 February 2009 and allowed a 10 day extension for her to lodge and serve her material.  When the applicant indicated to registry staff that she could not or would not comply with the extended timetable, the matter was listed for mention before me on 13 February 2009. 

The hearing on 13 February 2009

[4]  The applicant appeared at that hearing by telephone.  The respondents appeared either in person or by representation.  The third respondent appeared both for himself and for the fourth respondent.  I explained to the applicant her obligations to prepare the material on which she was relying in her application for leave to appeal as soon as possible because the matter involved children.  I asked for her time estimates to meet those obligations.  I then gave directions extending time, allowing an additional week beyond her requested time estimates, and made complementary orders in respect of the times by which the respondents were to lodge and serve material.  The applicant indicated at the hearing on 13 February 2009 that a hearing date on 1 May 2009 was "fine" by her.[1]

The hearing on 20 March 2009

[5]  The applicant failed to comply with the Court's directions and orders of 13 February 2009.  The matter was relisted before me for further directions on 20 March 2009.  Again, the applicant appeared by telephone.  The first respondent was legally represented.  Through an oversight, Mr Damien Carter did not appear.  He later wrote an apology to the Court in respect of this error.  The third respondent appeared in person, again representing both himself and the fourth respondent. 

[6]  The applicant stated that she had not prepared her material in accordance with the Court's directions of 13 February 2009 because she had applied to cross-vest this application for leave to appeal to the New South Wales Supreme Court.  She added that she disapproved of a particular registry officer and would not deal with her; the applicant decided she would instead "speak with the court".[2]  She wanted her application to be stayed pending the outcome of her cross-vesting application.  She faxed an application for a stay of her application for leave to appeal to the Court of Appeal registry on the morning of 20 March 2009.  I explained to the applicant that her application to cross-vest this matter to the New South Wales Supreme Court seemed misconceived, and that I was not prepared to grant her application for a stay because the application concerned children and it was in their interests that this matter be disposed of as soon as practicable.  I reminded her that on 13 February 2009 she had agreed that a hearing on 1 May 2009 was suitable and that she could meet the timeframes set on 13 February 2009.

[7]  I then obtained her fresh estimates as to when she could prepare the material in support of her application for leave to appeal.  I made fresh directions and orders for all parties to file and lodge their material, consistent with the applicant's latest request.  I explained to the applicant that I would be framing the orders in a way that meant that if she did not comply with them, her application for leave to appeal would be automatically struck out.  She indicated that she understood this.[3]  The orders made on 20 March 2009 included a direction that the applicant file and serve her paginated bundle of material (which could be bound in the idiosyncratic manner she requested even though it did not conform to registry practice) and lodge and serve her outline of argument by 4.00 pm on Friday, 3 April 2009.  I ordered that if she did not comply with that direction her application for leave to appeal was to be struck out for want of prosecution without any further order or direction.  I gave the parties liberty to apply on two days notice to the other parties and to the Court.

The hearing on 3 April 2009

[8]  On 30 March 2009, the applicant filed an application for orders including a two week extension for her to prepare, file, lodge and serve the material on which she will be relying on her application for leave to appeal; that the second respondent, Mr Carter, be removed as the children's independent representative due to incompetence and neglect; and that disciplinary action be taken against him for intimidating the applicant since early February 2009.  In support of her application, she supplied a doctor's certificate from Dr Alex Bereny of the Manning Medical Practice, Double Bay, Sydney, dated 1 April 2009.  Dr Bereny's report stated that the applicant:

"has been suffering ongoing health problems since diagnosed with pneumonia in Oct 2008.  She has developed an inflammatory lung condition, possibly sarcoidosis and has been intolerant of the appropriate treatment so far.  This has compounded ongoing stress from the court case, suffering insomnia and headaches.  Therefore she has been unable to produce necessary paperwork on time and requires a 2 – 3 week extension for this."

[9]  Her application was listed for hearing on 3 April 2009.  She had again indicated that she wished to appear by telephone.  I directed that, if the applicant intended to rely on Dr Bereny's medical certificate, Dr Bereny would have to be available (by telephone if he wished) for cross-examination at the hearing.  The Court arranged for both Dr Bereny and the applicant to appear by telephone.  A registry officer notified the applicant that the usual procedure when two entities were appearing in court by telephone would be followed.  Each entity was required to phone in at a fixed time on a provided toll-free number.  This differed from the procedure used by the applicant on her previous telephone appearances in this Court which involved the court telephoning her.  On 2 April 2009, the applicant sent an email to the registry officer who had informed her of the proposed telephone procedure: "I think I have had enough of your stupidity pull the other one".  Shortly afterwards, the applicant telephoned the Executive Assistant of the Director of Courts and told her to pass on the following message to the registry officer organising the telephone links: "Tell her she can get stuffed.  I am not going to".  Shortly after that, the applicant telephoned the Chief Justice's Executive Assistant and asked her to pass on to the registry officer the following message: "Tell her to get stuffed".

[10] On 3 April 2009, when this application was called on for hearing, the bailiff was unable to make contact on the toll-free number with either Dr Bereny or the applicant.  The applicant had not telephoned in.  Unknown to the Court, when the Court was attempting to contact the applicant at the time, she had left a telephone message on the voice mail of the Executive Assistant to the Director of Courts at 9.50 am stating: "The court has refused to ring me this morning.  Could you please tell me how quickly I can get the orders, because you've done it in my absence as you did in the District Court, and I'd like to appeal immediately to the High Court of Australia.  This is judicial bias on behalf of McMurdo.  Goodbye." 

[11] Meanwhile, Dr Bereny apparently had telephoned the toll-free number, but because of daylight saving had done so an hour earlier than was expected in Queensland.  After a short delay, the bailiff was able to telephone both Dr Bereny and the applicant and ultimately they both appeared by way of telephone links.  Dr Bereny gave evidence confirming his opinion stated in the medical certificate of 1 April 2009.  In answer to my questions, he stated that it was impossible for him to know whether the applicant's health would sufficiently improve in two to three weeks in order for her to prepare the material for her application.[4]  He stated that he thought it was "very likely" that she would be in the same position then as she was at the time of this hearing on 3 April 2009.[5]

[12] I explained to the applicant that, if she were to be given the extension of time she requested, by the time the respondents were given sufficient time to file their material in response, the matter could not be prepared in time for hearing on 1 May 2009.  I reminded her of the importance of finalising the application because it involved children.  The applicant urged me to grant her application for an extension of time and to defer the hearing until a later date.  I was initially inclined to grant her yet a further indulgence and to relist the matter for hearing in June 2009 until I heard the respondents' submissions.

[13] All respondents vigorously resisted the applicant's application for an extension of time to prepare her material.  They emphasised that the sorry history of this matter made it unlikely that she would comply with any further orders and directions of the Court.  All respondents had already been put to unnecessary expense, inconvenience and stress because of the additional court appearances arising from the applicant's determined non-compliance with directions and orders of this Court.  She had involved them in her ultimately unsuccessful application to cross-vest this matter to the Supreme Court of New South Wales.  She had also involved them in other proceedings in federal courts.  She had time to prepare those matters; she could have prepared this matter if she wished.  The third respondent, who shares custody of the children with the fourth respondent, also strongly resisted the applicant's application.  He had conscientiously attended all hearings in this Court, although this had caused him considerable inconvenience.  He said that he had been working night shifts.  He appeared to me to be very tired.  He emphasised that both he and the fourth respondent found the constant delay in finalising this matter stressful and that the children were also unsettled and concerned and wanted the matter finalised.

Conclusion

[14] Dr Bereny's evidence did not demonstrate that, if the application for an extension of time to file the applicant's material were granted, the applicant would be any healthier by then than she has been to date.  Neither Dr Bereny's evidence nor the applicant's submissions persuaded me that, if the extension were granted, the applicant would then prepare the necessary material within that extended time frame.  She had been granted many past indulgences by this Court at considerable cost, inconvenience and stress to the respondents.  Further delay was clearly not in the best interests of the children the subject of the order at the heart of this application for leave to appeal.  For these reasons, I refused the applicant's application for an extension of time to prepare her material.

[15] The application filed on 3 March 2009 also requested that the second respondent be removed as the children's independent representative and that disciplinary action be taken against him.  The applicant filed no material to support this extraordinary application.  In these circumstances, I could only conclude that in seeking those orders her application mischievous, vexatious, an abuse of process and must be refused. 

[16] I was acutely conscious that the consequence of refusing the applicant's application for an extension of time would be that her application for leave to appeal would be struck out if she did not file, lodge and serve her material by 4.00 pm on 3 April 2009.  But she has been given every opportunity in the past to progress her application for leave to appeal.  She has not availed herself those opportunities.  Importantly, her application is one for leave to appeal; she has no right to appeal.  She has already had an appeal to the District Court.  As the District Court judge explained in his thoughtful reasons, the magistrate's decision was based on apparently convincing independent evidence which was most unfavourable to the applicant's prospects of gaining custody of the children.  The children were separately represented at the original hearing and at the District Court appeal.  The applicant's prospects of success in her application for leave to appeal do not presently seem promising.  Had material been placed before me to demonstrate that she had prospects of success in her application for leave to appeal, I would have been very much more inclined to grant her directions application for an extension of time.  The absence of such material was a significant reason favouring its refusal. 

Footnotes

[1] Transcript page 7, line 49.

[2] Transcript page 5, line 36.

[3] Transcript page 10, line 20.

[4] Transcript page 6, lines 19 – 25.

[5] Transcript page 3, lines 1 – 3.

Close

Editorial Notes

  • Published Case Name:

    CAO v Department of Child Safety & Ors

  • Shortened Case Name:

    CAO v Department of Child Safety

  • MNC:

    [2009] QCA 87

  • Court:

    QCA

  • Judge(s):

    McMurdo P

  • Date:

    09 Apr 2009

Litigation History

EventCitation or FileDateNotes
Primary JudgmentDC3186/08 (No Citation)-Appeal concerning child protection order made by Children's Court; appeal dismissed: Rafter SC DCJ
Primary Judgment-11 Nov 2008Children's Court decision; protection order granting short term guardianship to Chief Executive of Department of Child Safety
QCA Interlocutory Judgment[2009] QCA 8709 Apr 2009Application for extension of time to file material for application for leave to appeal; absence of material demonstrating prospects of success in application for leave to appeal; delay not in best interests of the children; application dismissed:McMurdo P
Appeal Determined (QCA)[2009] QCA 16916 Jun 2009Application to review the order of the President in [2009] QCA 87; application for leave to appeal was incompetent as no appeal lies from a decision of the Childrens Court, constituted by a District Court Judge, under s 118(3) of the District Court of Queensland Act 1967; not persuaded error in discretion in [2009] QCA 87; application refused: de Jersey CJ, Keane JA and Fraser JA
Special Leave Refused (HCA)[2009] HCASL 25909 Dec 2009Application for special leave to appeal dismissed: Heydon and Bell JJ

Appeal Status

Appeal Determined - Special Leave Refused (HCA)

Cases Cited

No judgments cited by this judgment.

Cases Citing

Case NameFull CitationFrequency
Collier v State of Queensland [2010] QSC 2541 citation
1

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