GM v DEPARTMENT OF HUMAN SERVICES [2024] SASCA 93

On Appeal from SUPREME COURT OF SOUTH AUSTRALIA (THE HONOURABLE JUSTICE MCINTYRE) CIV-23-005567 Appellant: GM Counsel: MR WJN WELLS KC WITH MR A COLLETT - Solicitor: JOHNSTON WITHERS Respondent: DEPARTMENT OF HUMAN SERVICES Counsel: MR M WAIT SC WITH MR S RANIERI - Solicitor: MR P ALVARO Hearing Date/s: 29/07/2024 File No/s: CIV-24-002221 C SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment 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 in which it was generated. GM v DEPARTMENT OF HUMAN SERVICES [2024] SASCA 93 Decision of the Honourable Acting Chief Justice Livesey (ex tempore) 29 July 2024 ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL APPEAL AND NEW TRIAL – PROCEDURE – SOUTH AUSTRALIA – POWERS OF THE COURT – FURTHER EVIDENCE The appellant’s appeal is listed for hearing on 8 August 2024. The appellant has challenged a decision made by a member of the South Australian Civil and Administrative Tribunal affirming a prohibition order or notice made by the Central Assessment Unit pursuant to s 32 of the Child Safety (Prohibited Persons) Act 2016 (SA) (the Child Safety Act). As a result, the appellant is prohibited from undertaking a broad range of activities which are regarded as working with children. The appellant’s appeal to a single judge was dismissed, and he has applied for permission to appeal against that decision. The respondent has applied to vacate the hearing because it says that it has become aware of the existence of new assessable information that was not before it when it made its decision the subject of this appeal. It considers the information to be directly relevant to any consideration to be given to whether the applicant poses an unacceptable risk to children for the purposes of s 26(1) of the Child Safety Act and, accordingly, whether the appellant should be regarded as a prohibited person for the purposes of s 26(5) of that Act. The appellant opposed vacating the hearing and argued there was prejudice and the appeal must proceed. HELD: vacating the hearing and adjourning the matter to a callover in four weeks: 1. There will inevitably be a question about the basis upon which any assessment, and any review or appeal concerning that assessment, should be considered. -- 1 of 5 -- 2. It is necessary to take into account the prospect that should the appellant succeed on this appeal, there may be a further assessment based on the new information undermining that success. 3. Whilst it appears the respondent should pay the appellant’s costs thrown away by reason of its application, including the costs of today, it will be necessary to hear from the parties. Child Safety (Prohibited Persons) Act 2016 (SA) ss 26(1), 26(5), 32, referred to. GJC v Department of Human Services [2020] SACAT 38; GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857; GM v Department of Human Services [2024] SASC 23; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; Warren v Coombes (1979) 142 CLR 531, considered. -- 2 of 5 -- GM v DEPARTMENT OF HUMAN SERVICES [2024] SASCA 93 Court of Appeal – Civil – Application LIVESEY A/CJ (ex tempore): 1 By an interlocutory application dated 26 July 2024, the respondent has sought an order vacating the appeal listed for hearing by this Court on 8 August 2024. 2 The appellant has challenged a decision made by a member of the South Australian Civil and Administrative Tribunal (the Tribunal) affirming a prohibition order or notice made by the Central Assessment Unit pursuant to s 32 of the Child Safety (Prohibited Persons) Act 2016 (SA) (the Child Safety Act). As a result, the appellant is prohibited from undertaking a broad range of activities which are regarded as working with children. 3 The appellant’s appeal to a single judge was dismissed,1 and he has applied for permission to appeal against that decision. The appellant says that the Tribunal erred in following GJC v Department of Human Services,2 because the reasoning as to: (1) the meaning and application of the test concerning an “unacceptable risk to children” in s 26(1) of the Child Safety Act, and (2) the standard of proof and weighting to be applied to assessable information, are both “demonstrably wrong”. 4 The appellant contends that the appeal judge approved the first issue but failed to address the second and, in addition, erred in finding that the decision of the Tribunal was properly characterised as discretionary rather than one to which the “correctness standard” applied.3 5 The respondent has applied to vacate the hearing because it says that it has become aware of the existence of new assessable information that was not before it when it made its decision the subject of this appeal. It considers the information to be directly relevant to any consideration to be given to whether the applicant poses an unacceptable risk to children for the purposes of s 26(1) of the Child Safety Act and, accordingly, whether the appellant should be regarded as a prohibited person for the purposes of s 26(5) of that Act. 6 The respondent says that it will be in a position to address the new assessable information within a period of two to four weeks. The appellant has only just seen the respondent’s summary of that information. The appellant opposes me seeing the summary, essentially on the basis that it is not relevant to the application, though it is conceded for the purposes of this application that it is likely 1 GM v Department of Human Services [2024] SASC 23 (McIntyre J). 2 GJC v Department of Human Services [2020] SACAT 38. 3 See Warren v Coombes (1979) 142 CLR 531, 551-552; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541, 563 [49] (Gageler J); GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857, [16]. -- 3 of 5 -- [2024] SASCA 93 Livesey A/CJ 2 unfavourable to him. Ultimately, the respondent says that because there will be a new assessment, this appeal will likely lack utility. 7 The appellant opposes the application and points to the prejudice under which he is presently operating. This process commenced around four years ago and there were hearings in jurisdictions where no costs orders could be made. Although I have no evidence about that, some degree of prejudice may be assumed. 8 The appellant says there are three reasons why the appeal must proceed. First, any further check which is undertaken before the appeal is heard would be invalid and inutile. Second, the appeal is a necessary precondition to any further assessment because it will clarify essential and fundamental elements about the operation of the Child Safety Act, without which any assessment and notice will be at risk of further challenge for jurisdictional error. Third, there is no obstacle to this Court setting aside the present notice if that is the correct and preferable decision. 9 I hope I do no injustice to these arguments by describing them as essentially directed to the proposition that the Child Safety Act recognises only one notice. That notice remains in operation indefinitely. Whilst an additional working with children check may be conducted under s 30 of the Child Safety Act, any further notice will, says the appellant, likely be successfully challenged. The respondent takes issue with these arguments, particularly the suggested approach to s 30 of the Child Safety Act. 10 It is obviously not possible for me to resolve these arguments for the purposes of determining this application. Whichever view is correct, there will inevitably be a question about the basis upon which any assessment, and any review or appeal concerning that assessment, should be considered. Moreover, it is necessary to take into account the prospect that should the appellant succeed on this appeal, there may be a further assessment based on the new information undermining that success. 11 In all of these circumstances, I think that this is a proper case in which to vacate the appeal hearing on the basis that the new information is addressed quickly. The matter will be reviewed by me in four weeks. Whether the appeal should be relisted will then be considered. 12 There is a question about the appellant’s costs. At the moment, I have no information about what has come to the attention of the respondent and no means of determining whether it should have been discovered earlier. I am disposed to ordering that the respondent pay the appellant’s costs thrown away by reason of its application, including the costs of today. It will be necessary to hear from the parties about that. If they are in a position to address costs on the next occasion, I will hear from them then. 13 The Court orders: -- 4 of 5 -- [2024] SASCA 93 Livesey A/CJ 3 1. The appeal listed for hearing on 8 August 2024 is vacated. 2. The matter will be called over at 9.30 am on Wednesday, 28 August 2024. -- 5 of 5 --