State of New South Wales v DC & Anor [2017] HCATrans 22 (10 February 2017)

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State of New South Wales v DC & Anor [2017] HCATrans 22 (10 February 2017)

Last Updated: 10 February 2017

[2017] HCATrans 022

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S214 of 2016

B e t w e e n -

STATE OF NEW SOUTH WALES

Applicant

and

DC

First Respondent

TB

Second Respondent

Application for special leave to appeal

BELL J
GAGELER J
GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO SYDNEY

ON FRIDAY, 10 FEBRUARY 2017, AT 9.54 AM

Copyright in the High Court of Australia

MR N.J. WILLIAMS, SC: May it please the Court, I appear with MR I.L. HARVEY, for the applicant. (instructed by Crown Solicitor (NSW))

MR A.S. MORRISON, SC: I appear for the respondent with my learned friends, MR J.R.K. PRYDE and MR N.F. MORRISSEY. (instructed by Graham Jones Lawyers)

BELL J: Mr Williams.

MR WILLIAMS: Your Honours, there are two questions. The first is where legislation confers powers that involve discretionary choices among available options, and after consideration one range of options but not another is chosen, does the failure to choose that other option give rise to a breach of the common law duty sounding in negligence. The second question – where legislative powers are conferred upon a head of a department to take steps for the protection, as here of young persons, can the State be held vicariously liable in the absence of a finding of breach of duty or any relevant duty by any officer.

BELL J: Yes.

MR WILLIAMS: The facts can be briefly summarised from page 166 of the book in the judgment of Justice Ward who formed the majority with Justice Sackville. At paragraph 183 a telephone complaint was made to the Department that led almost immediately to interviews on 20 and 22 April 1983. In paragraph 184:

Steps were taken by the Department almost immediately to place both children away from the family home.

That included, as we see at the foot of the page:

A “place of safety” order –

being obtained on 22 April from the Children’s Court and then going to 186, over the page, on 2 May further orders being sought in the Children’s Court in respect of each of the respondents and those orders being made.

The matter was then regularly back before the Children’s Court. Paragraph 203 is, perhaps, the end of a chronology of steps of the matter being before the Children’s Court. Similar orders were made on a final basis on 7 November, including conditions as to residents and regulating contact and like matters. Of course, it was found by the primary judge that none of those steps constituted any relevant failure in that there was no negligence to be found and no criticism to be made in respect of the second respondent in the proceedings below.

BELL J: Nor was it put that the officer, Mr Frost, was neglectful in any respect.

MR WILLIAMS: That is so. Nor was it found. So, the power in question is found at page 117 of the book in section 148B of the Child Welfare Act 1939. It was repealed in 1987. We say there is continuing relevance – I will come to that – not least because it would be a bold assumption that this is the last such case to be brought under that Act, given that the Limitation Act in respect of such matters in New South Wales – the limitation period has been repealed in New South Wales.

It is important to note the relevant power is – the trigger in this case was – at about line 25, in subsection (2) – a call made by the elder of the two respondents with the support of the grandmother. Then at the foot of the page, line 50 is the power. No question of satisfaction of (a). In respect of (b) we would emphasise the very wide discretion that this subsection confers. First, it is a Buck v Bavone -type satisfaction provision. Then the steps that are to be taken are such action as he believes appropriate conferring the widest possible discretion, we say no doubt because of the complex multifactorial judgments that are involved in such matters.

At 113 of the appeal book, the nature of the contest in the Court of Appeal is identified at the top of the page – both the notice of contention that was filed and the way in which that was understood by the appellants. So, these matters were squarely raised. Then, at page 137 of the book, at Justice Basten’s conclusion, are the conclusions which the State seeks by this application to vindicate.

BELL J: Not only his Honour’s conclusions but, as I understand it, his Honour’s analysis.

MR WILLIAMS: Indeed.

BELL J: Yes.

MR WILLIAMS: The conclusion is at 93, the beginning of 93, and then the reasoning is in the balance of that paragraph and the following paragraph. The reasoning in 94:

It may have been arguable that there was a duty to consider the available options, but that too was done . . . To accept that proposition would be to convert a statutory discretionary power, involving a balancing of countervailing considerations, into a common law obligation imposed by the court.

Before leaving that page, I mention in passing, paragraph 95 which is relevant to the second of our grounds – I might return to it. At page 195 of the book is the core of the reasoning of Justice Ward. In paragraph 276:

His Honour did not err in concluding that in the present case the Department owed a duty of care to the appellants. I would describe the content of that duty as a duty in the exercise of the statutory powers . . . to take all reasonable steps in the circumstances of the appellants’ case to protect them from the risk –

Now, the formulation as a duty to take all reasonable steps is inconsistent with the statutory power, a discretionary power to take such steps as the Director considers appropriate. It conceals or glosses over the difficulty that cases of this kind throw up. Reporting to the police would only be effective as a child protection measure if it led to the arrest – the immediate arrest and incarceration or holding without bail or on very strict bail conditions which somehow might achieve what the Children’s Court orders with the same effect did not achieve, non-approach orders, and on any view to eschew criminal charges would involve calling each of the respondents as witnesses.

That was for a variety of reasons a complex choice. Those are apparent on page 140 of the book - at about line 40 on the page the family position of the elder respondent who raised the complaint was dealt with. At the top of 141 was the quote from the district officer’s report about the complexities of the matter. Finally, at page 146, Justice Basten refers, toward the foot of the page about line 55:

the fear expressed was not that of further abuse, so much as physical violence for having exposed his abusive behaviour.

These were complex judgments to be made. We submit, your Honour, that the point of principle underlying Justice Basten’s conclusions are of application to all discretionary powers involving a choice between competing options. The point is at the heart of the interface between the public law “may” and the common law “ought”. The Act has, of course, been repealed but as we point out at page 241 of the book in about line 15 the current Act contains a discretionary power on the Secretary to furnish information relating to safety and well-being. So the same point arises if not in precisely the same legislative terms.

BELL J: Broadly, this issue raises the differing views in Michael in the United Kingdom.

MR WILLIAMS: Indeed, and to a degree in Pyrenees where there were three different approaches among the majority to the way in which the duty was formulated - Justice Brennan’s, in a sense, pure public law approach - start by construing the power, what is the scope of the power, was this a Julius v Bishop of Oxford-type case where the power had to be exercised; Justice Kirby, on the other side, which might be more the pure common law negligence position and Justice Gummow in the middle between those two, so these are points of principle of some considerable importance.

BELL J: Can I just then raise with you, turning to your application, you identified at the outset of your oral submissions the two points of principle that you seek to ventilate. The nine grounds in the application identify rather larger territory including factual disputes and the like.

MR WILLIAMS: What we would say in respect of those, your Honour, 5 in the grounds on page 238, 5 and 6 are the two points that I have articulated at the outset.

BELL J: Yes.

MR WILLIAMS: In respect of the other matters, we would say that they do involve important matters of principle going, for example, if one were to turn to page 150 of the book to Justice Basten’s analysis – I am sorry, 154 of the book in paragraph 150 of the judgment. They do involve important points of principle about the application of Fox v Percy. They would not of themselves merit a grant of special leave. The only way they could really be put is as an invocation of the visitorial jurisdiction but if leave is being granted we would say that it is appropriate that the whole case go up but I would not wish to say more.

GAGELER J: They just invite the notice of contention, do they not?

MR WILLIAMS: That may well be so.

BELL J: Yes, thank you, Mr Williams. Dr Morrison.

MR MORRISON: Thank you, your Honours. The State of New South Wales is effectively saying that this is an important test case but we have to ask of what. Are they saying that there are other cases or potential cases where their officers have received clear admissions, not just from the wife of the abuser but from the abuser himself, but there is no credible evidence that it was reported to police?

We do not understand from the evidence presented below that they have any other examples to bring forward. There is no police record. There is no departmental record. No one has a recollection of it being reported or even considered and Justice Basten said the obligation was to consider. The Court of Appeal unanimously agreed with the trial judge it was not reported. When they want to test the duty of care, the starting point is that in this particular case duty of care was admitted. So the only issue is whether it extends to reporting to police in the particular case.

BELL J: The issue is the scope and surely a lively question is raised.

MR MORRISON: Indeed, and as Justice Sackville put it at page 233 of the application book the debate at the trial eventually turned on whether in the circumstances of the case the Department had done enough to discharge its duty of care without reporting the stepfather’s abuse to police. We say that is a question of fact in the particular case. They argue inconsistently that it was reported to police despite the absence of recollection or evidence but, on the other hand, they argue that they do not need to. They did not appear or suggest by notice of contention that the finding that reporting to police would have protected the girls was wrong. That is powerful evidence that there was no reporting.

BELL J: One observation that Justice Basten made concerned the circumstance that the option that the Director chose was to place the matter before the Children’s Court and there were, I think, a number of occasions when the matter was dealt with by the Children’s Magistrate. Justice Basten, I think, raised rhetorically if it was incumbent on the Director to report the matter to the police it might be thought surprising that no action was taken when the matter was ventilated on those occasions before the Children’s Court.

MR MORRISON: But we say the obligation under the Child Welfare Act was on YACS not on the Children’s Court. Dealing at this time also with that complaint in respect of a carer’s liability, the failure was by Maguire or perhaps by Frost, we cannot say which and hence it could not be put to Mr Frost that he had erred - Mr Frost was the subordinate to Mr Maguire and only acted when he was not there. But what is clear is that no one considered reporting it. There was no evidence of any consideration written or by recollection from Maguire, Frost or from the District Officer Quinn, no consideration whatever.

On that basis, we simply say, even on Justice Basten’s terms there was a failure and a clear failure but moreover it was a continuing duty so when it became perfectly apparent that the actions being taken by the Children’s Court in respect of which the stepfather was not a party and they could not find him and he was having continued access to the girls on an almost daily basis in circumstances where his record indicated that he was a grave danger, where he was unrepentant, quite open about his right to abuse the girls, in those circumstances that continuing obligation meant that at every step along the way where it was known that the Children’s Court was ineffective, YACS still had an obligation to take action.

What about when he then frankly admits to the two female YACS officers in September, winks salaciously at them and when the district officer says in her report to the court that he is “unlikely to change”. Justice Ward said he was brazen and unrepentant. We would submit that is correct. In those circumstances, there was an obligation to take action as there would have been from the time that the mother openly admitted to the YACS officer that the abuse was continuing.

So we say that in respect of those matters this was not your ordinary case in respect of duty of care. Duty of care having been conceded, common law duty by the State of New South Wales, the question was whether the action taken was sufficient and manifestly reporting to police was not effective because they knew from a very early time that he was back with the girls on a regular basis and, indeed, knew that the mother was taking them to him.

BELL J: When you say the duty was conceded, what was not conceded was that the scope of it was to exercise the discretionary power under the Child Welfare Act in the one way that you identify. I mean that – and as Mr Williams points out there are – one can at least see difficulties in the way of acceptance of the proposition when one takes into account the range of considerations that it was necessary for the Director to have regard to.

MR MORRISON: This was not the ordinary case. One would accept that there would not be in all cases or perhaps even in many cases an obligation to report to police but in this case manifestly nothing else was going to protect the girls. Manifestly from what occurred post-reporting by the older girl to YACS - and she was the one who had the courage to raise it with YACS - post that reporting nothing else was going to protect them. This is not your ordinary case.

This is not a case where any other action was effective. Once the girls within a couple of weeks were back with the mother then it became known and the YACS officer, the district officer reported that he was getting regular access to the girls. In those circumstances her assessment was he was unlikely to change. That is long before he even frankly admitted to her that he had been abusing them, period unspecified. In those circumstances, we say this is not the ordinary case of duty of care and the considerations which might arise in another case as to whether the duty ought to be exercised in this particular way do not apply here.

Justice Basten, when he was discussing the extent of the duty of care, referred to some difference where the risk of continuing abuse might arise. So this case is squarely that exception. The other matter that we should deal with squarely is that the State of New South Wales wants to argue that the abuse did not continue. Some continuing abuse, including groping of the younger girl, was conceded by senior counsel for the State of New South Wales and we provided some bits of the cross-examination at black 244 and 245 and the Court of Appeal transcript at 8 and 9 where senior counsel for the State of New South Wales conceded that groping continued.

BELL J: Dr Morrison, the way Mr Williams commenced his oral submissions was to direct attention to the two issues of principle raised in his application in grounds 5 and 6. Perhaps for the present, if you could confine your response to those grounds and we will hear further from Mr Williams if he is pressing the other matters, the subject of - - -

MR MORRISON: Thank you, your Honours. Well, we have said in respect of the duty of care simply that this case is a case which is very fact dependent. It is not the normal circumstance but, in any event, whatever was the decision it appears to be a decision without meeting the very basic signs of consideration of what needed to be done.

The YACS officer, a relatively junior officer, appears to have acted to remove the girls briefly from the home. The YACS officer knew that they had returned. There is no indication, either in the records or in the recollection of either Maguire or Frost considering the matter or being involved in any decision making.

In the absence of that evidence, there is no basis for saying that there was appropriate consideration of the decision whether or not the police should become involved. We say that says why this is not a suitable vehicle for determining the duty of care in other cases. We have said what we needed to say about vicarious liability. We did not have to identify the particular individual. We merely had to identify the failure. May it please the Court.

BELL J: Thank you, Dr Morrison. Mr Williams, we are minded to make a grant of special leave in this case but to confine it to grounds 5 and 6 noting your undertaking in relation to costs, namely, that the acceptance that an order for costs should be made in favour of the respondents regardless of whether the application and appeal is allowed.

MR WILLIAMS: May it please the Court.

BELL J: Yes.

MR MORRISON: Your Honours, could I just raise one other matter?

BELL J: Yes.

MR MORRISON: We understand that we have seven days in which to lodge a cross-appeal and I should, in terms of the length of time of the matter, just give notice that our present instructions are to raise the Watts v Rake, Purkess v Crittenden issue which is a very short point in respect of whether or not damages should have been apportioned. But it is unlikely to have much effect on the length of the hearing because it is a short point largely dealt with by written submissions one would think. But I should squarely raise that with the Court that that is our intention.

GAGELER J: You should not assume that you can do that without leave.

MR MORRISON: Yes, we did make some inquiries with the Registrar as to the appropriate course and have acted upon his advice but I will hear from him in that regard when we seek to file it.

BELL J: That is noted, but the requirement for leave is a matter that you should bear in mind, Dr Morrison.

MR MORRISON: Indeed. We note that, your Honour. We did, in fact, attempt to file a conditional notice of appeal and were told we had to wait until after the special leave application was determined. Thank you, your Honour.

BELL J: Thank you, Dr Morrison. In this matter then there will be a grant of special leave. It is confined to the grounds raised in paragraphs 5 and 6 of the application and the grant is subject to the undertaking with respect to costs made by the applicant. The parties are advised to collect the directions from the Registry in relation to the timetabling for submissions. Thank you.

AT 10.20 AM THE MATTER WAS CONCLUDED