GM v DEPARTMENT OF HUMAN SERVICES [2024] SASCA 103

Appellant: GM Counsel: MR W J N WELLS KC WITH MR A COLLETT - Solicitor: JOHNSTON WITHERS Respondent: DEPARTMENT OF HUMAN SERVICES Counsel: MR M J WAIT SC - Solicitor: CROWN SOLICITOR (SA) Hearing Date/s: 21/08/2024, 22/08/2024 File No/s: CIV-24-007826 B 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 (No 2) [2024] SASCA 103 Decision of the Honourable President Livesey (ex tempore) 22 August 2024 ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL ADMINISTRATIVE LAW - JUDICIAL REVIEW - GENERALLY The appellant has urgently applied for an interlocutory injunction, restraining the respondent from continuing with a second ‘working with children check’, presently being conducted pursuant to s 30 of the Child Safety (Prohibited Persons) Act 2016 (SA) (the Child Safety Act). As part of affording the appellant procedural fairness, on 13 August 2024 the respondent gave the appellant a preliminary determination and sought the appellant’s response by 27 August 2024. The determination will address 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 has already sought leave to appeal an order made by a single judge, dismissing his appeal from the Tribunal, affirming a prohibition notice from the Central Assessment Unit pursuant to s 32 of the Child Safety Act following an earlier ‘working with children check’. As a result, he is presently prohibited from undertaking a broad range of activities involving working with children. The hearing of that appeal on 8 August 2024 was vacated because there was said to be new ‘assessable information’ requiring a second ‘working with children check’. The appellant asked that his applications for an injunction, for judicial review and for discovery be listed “as a matter of urgency”. He asked that the application for judicial review be heard and determined by the Court of Appeal, together with the appeal. Ultimately he asked that four questions of law be referred for determination by the Court of Appeal. Three of these are common to the appeal. The respondent accepted that these questions could be considered by the Court of Appeal, but only after a second decision is made. HELD refusing the application for an injunction, and remitting the balance of the applications for judicial review and for discovery to the General Division: -- 1 of 10 -- 1. Whilst questions of convenience and degree may sometimes be involved, an injunction coupled with fresh applications for judicial review and discovery are the kinds of matters that should ordinarily be heard in the General Division of the Supreme Court, even though the Court of Appeal may exercise any jurisdiction or powers that the court has in its General Division. 2. Whilst the appellant’s argument about the illegality of a second notice has prima facie merit, it is not appropriate to express any concluded view about it for the purposes of this application. The appellant has available the statutory right of a ‘full merits review’ before the Tribunal, together with appeal rights in this Court. 3. Whether and to what extent the anticipated decision is flawed must await the making of the decision, following the procedural fairness process which is presently underway, and any submissions which the appellant may make (akin to the matters raised on appeal and by way of judicial review) to the relevant decision-maker. 4. The fact of an existing prohibition notice weakens the appellant’s case on prejudice and the balance of convenience. 5. Should a second prohibition notice be issued by the Central Assessment Unit, the Court will consider referring questions of law, whether as proposed or in a form to be agreed, for determination by the Court of Appeal pursuant to s 49 of the Supreme Court Act 1935 (SA) on reasonable written notice. Child Safety (Prohibited Persons) Act 2016 (SA) S 26, 30, 32, 43; Judicial Conduct Commissioner Act 2015 (SA) S 29; Migration Act 1958 (Cth) S 476; South Australian Civil and Administrative Tribunal Act 2013 (SA) S 26, 72, Part 3 Division 3; Supreme Court Act 1935 (SA) S 19B, 19D, 49; Uniform Civil Rules 2020 (SA) R 212.3, 212.5, 256.7, referred to. A Judicial Officer v The Judicial Conduct Commissioner and Another (2022) 368 FLR 462; Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199; Australian Broadcasting Corporation v O’Neill 227 CLR 57; Bullock v The Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464; Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148; Cayne v Global Natural Resource plc [1984] 1 All ER 225; GM v Department of Human Services [2024] SASC 23; GM v Department of Human Services [2024] SASCA 93; Keane v Woolworths Group Ltd (No 2) [2024] SASCA 39; Kirk v Industrial Court (NSW) (2010) 239 CLR 531; NWL Ltd v Woods [1979] 1 WLR 1294; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; Teachers Registration Board of South Australia v Kourlas [2024] SASCA 88; The King v Hibble; Ex parte The Broken Hill Proprietary Company Limited (1920) 28 CLR 456; The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100, considered. -- 2 of 10 -- GM v DEPARTMENT OF HUMAN SERVICES (No 2) [2024] SASCA 103 Court of Appeal – Civil LIVESEY P Introduction 1 The appellant has urgently applied for an interlocutory injunction, restraining the respondent from continuing with a second ‘working with children check’, presently being conducted pursuant to s 30 of the Child Safety (Prohibited Persons) Act 2016 (SA) (the Child Safety Act), and any further like checks. 2 As part of affording the appellant procedural fairness, on 13 August 2024 the respondent gave the appellant a preliminary determination, supported by a description of the material on which it relied,1 together with a number of documents, and sought the appellant’s response. The determination will address 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. 3 Although the appellant’s response has been sought by 27 August 2024, the respondent says it is amenable to any reasonable request for an extension of time. 4 The bundle of material filed by the appellant on Monday, 19 August 2024 suggested that the injunction was sought in aid of an application for judicial review, together with an application for the discovery of further documents by the respondent. 5 During the course of his argument, Mr W J N Wells KC (with Mr A Collett) made it clear that the injunction was really sought in connection with the appellant’s referral of four questions of law for the determination of the Court of Appeal. His primary submission was that the injunction should be ordered so that these could be determined together with the existing appeal commenced by the appellant concerning the first ‘working with children check’ and associated prohibition notice.2 The balance of the application, including the request for discovery, could be referred to a judge in the General Division of the Supreme Court. 6 For the respondent, the Solicitor-General, Mr M J Wait SC, accepted that the four proposed questions were appropriate for determination, but only after a 1 Whilst the description of the material on which the respondent relies is appended to the letter sent to the appellant, I have not read that material. On the last occasion senior counsel for the appellant said that it was not relevant to what was before me and that reading it may compromise my capacity to hear the appeal. 2 Against the decision in GM v Department of Human Services [2024] SASC 23 (McIntyre J), see GM v Department of Human Services [2024] SASCA 93. -- 3 of 10 -- [2024] SASCA 103 Livesey P 2 decision has been made on the second ‘working with children check’. He submitted that once it is clear what decision has been made by the respondent, the matter will then have ‘crystallised’. Only then should consideration be given to referring questions of law to the Court of Appeal. 7 Mr Wait suggested as a form of ‘compromise’ that, if the decision is averse to the appellant, he can commence proceedings in the South Australian Civil and Administrative Tribunal (the Tribunal) and, with the respondent’s consent, reserve questions of law for determination by the Court of Appeal pursuant to ss 26(2)(b) or 72(1) of the South Australian Civil and Administrative Tribunal Act 2013 (SA). 8 For the following reasons, I refuse the application for an injunction. I would be prepared to consider referring questions of law for determination by the Court of Appeal if a second prohibition notice issues. Background – an existing appeal 9 The appellant has sought leave to appeal an order made by a single judge, dismissing his appeal from the Tribunal, affirming a prohibition notice from the Central Assessment Unit pursuant to s 32 of the Child Safety Act following an earlier ‘working with children check’.3 As a result, the appellant is presently prohibited from undertaking a broad range of activities involving working with children. 10 On 29 July 2024, and over the appellant’s opposition, I vacated the appeal on the application of the respondent after it said it had become aware of new assessable information that was not before it when it made its earlier decision.4 The appellant advanced a number of arguments as to why the appeal should proceed and why any further prohibition notice would be invalid. In the course of my brief reasons, I explained:5 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 Whether the appeal should be relisted, and any issue about costs thrown away, will be considered by me next week - on 28 August 2024. The application for judicial review – this Court? 12 The appellant asked that his applications for an injunction, for judicial review and for discovery be listed before me “as a matter of urgency”. He asked that the 3 GM v Department of Human Services [2024] SASC 23 (McIntyre J). 4 GM v Department of Human Services [2024] SASCA 93. 5 GM v Department of Human Services [2024] SASCA 93, [10]. -- 4 of 10 -- [2024] SASCA 103 Livesey P 3 originating application for judicial review be heard and determined by the Court of Appeal, together with the appeal. The appellant seeks the following orders by way of judicial review: 1. An interlocutory injunction restraining the Central Assessment Unit, whether by its authorised person or otherwise, from commencing, continuing or completing a further working with children check pursuant to s 30, Child Safety (Prohibited Persons) Act 2016 until the final hearing and determination of this Judicial Review Application; 2. Declarations that: a) the Central Assessment Unit cannot find that the applicant poses an unacceptable risk to children (s 26 (1), Child Safety (Prohibited Persons) Act 2016) unless it is satisfied on the balance of probabilities that the applicant poses a risk that a reasonably informed and fair-minded member of the community would not be willing to tolerate and would not consider worth taking; b) the Central Assessment Unit is not authorised by the Act, or at all, to issue a Prohibition Notice to the applicant when he is already the subject of a Prohibition Notice which has not been revoked and is not the subject of an application to revoke it. 3. An order in the nature of Prohibition, alternatively, Prohibition quoad hoc, preventing the Central Assessment Unit, whether by its authorised person or otherwise, from commencing, continuing or completing a further working with children check pursuant to s 30, Child Safety (Prohibited Persons) Act 2016; 4. A final injunction restraining the Central Assessment Unit, whether by its authorised person or otherwise, from commencing, continuing or completing a further working with children check pursuant to s 30, Child Safety (Prohibited Persons) Act 2016; 5. Such other order as to this Court seems fit; 6. costs. 13 Absent a statutory command, this Court would not ordinarily hear and determine an application for judicial review except on an appeal by way of rehearing.6 As r 256.7(2) of the Uniform Civil Rules 2020 (SA) shows, an application for judicial review is ordinarily heard and determined by a single judge. 14 Indeed, questions about the validity of a prohibition notice are usually first addressed in the Tribunal.7 Whilst the issues raised by way of judicial review might be said to raise questions of law in common with the appeal, the attack 6 Cf Section 29(1) of the Judicial Conduct Commissioner Act 2015 (SA) requires that an application for judicial review be heard and determined by the Court of Appeal, see A Judicial Officer v The Judicial Conduct Commissioner and Another (2022) 368 FLR 462. 7 Review proceedings may be commenced in the Tribunal under s 43(2) of the Child Safety Act and Part 3, Division 3 of the South Australian Civil and Administrative Tribunal Act 2013 (SA). See GM v Department of Human Services [2024] SASC 23, [17], [23] (McIntyre J). -- 5 of 10 -- [2024] SASCA 103 Livesey P 4 mounted by the appellant is somewhat broader. To some extent questions of fact are, or may be, in issue. 15 As well as an injunction and the discovery of documents, the appellant seeks a determination as to whether issuing a second prohibition notice would be beyond the power and in excess of the jurisdiction of the Central Assessment Unit. Issue number 5 raised by the appellant is in the following terms: Whether, in the circumstances revealed by the existence of an unrevoked Prohibition Notice, the timing of the application to vacate the appeal hearing and the dated content of the assessable information to be assessed on the further assessment, the [Central Assessment Unit] is seeking to exercise its powers under s 30 for an unauthorised purpose. 16 Whilst I accept that questions of convenience and degree may sometimes be involved, an injunction coupled with fresh applications for judicial review and discovery are the kinds of matters that should ordinarily be heard in the General Division of the Supreme Court, even though the Court of Appeal may exercise any jurisdiction or powers that the court has in its General Division.8 17 The corollary is that, whilst each case must depend on its particular circumstances, an injunction coupled with fresh applications for judicial review and discovery are not the kinds of matters that should first be heard and determined by the Court of Appeal, especially where they are not all truly ancillary to the hearing of the existing appeal.9 18 Where there is at least some prospect that evidence must be received, and factual findings must be made, before any controversy over a second prohibition notice could be said to have crystallised into questions of law fit for determination by the Court of Appeal, the appropriate course will usually be to direct that the matter be heard and determined in the General Division. 19 In answer to this, the appellant contended that his application was brought pursuant to s 49 of the Supreme Court Act 1935 (SA), which provides for questions of law to be reserved to the Court of Appeal. It was made clear that, if necessary, instructions would be obtained to abandon issue number 5 and the associated application for discovery. Alternatively, that part of the application could be remitted to the General Division. As will be seen, I think that alternative is the appropriate course. 20 The argument on the injunction therefore proceeded on the basis that this Court was really only concerned with questions of law and whether they should be entertained by the Court of Appeal before or after a second prohibition notice issues. 8 See s 19D of the Supreme Court Act 1935 (SA). 9 See s 19B of the Supreme Court Act 1935 (SA), rr 212.3(1) and 212.5(1) of the Uniform Civil Rules 2020 (SA). See also Keane v Woolworths Group Ltd (No 2) [2024] SASCA 39, [24]-[28]. -- 6 of 10 -- [2024] SASCA 103 Livesey P 5 The application for an interlocutory injunction 21 The parties proceeded on the assumption that the usual equitable principles relating to making orders by way of an interlocutory injunction were relevant to this application, though the matter before the Court was concerned with the appellant’s entitlement to declaratory and other relief, including prohibition, sought by way of judicial review of an anticipated administrative decision. 22 That is, it was necessary for the appellant to show that there were serious questions to be tried in the sense that a prima facie case for the relief it seeks on appeal exists, and that the balance of convenience favoured the grant of interlocutory relief.10 It was for the appellant to show “a sufficient likelihood of success to justify in the circumstances the preservation of the status quo” pending a hearing in the Court of Appeal.11 23 There is a recognised inter-relationship between the strength of the serious questions and the balance of convenience or, as it is sometimes described, balancing “the risk of doing an injustice”.12 That is, apparently strong points for the appeal court may warrant an injunction where there is scant evidence of prejudice or the balance of convenience is very evenly poised.13 By contrast, even if there were doubts about the points to be made before the appeal court, an injunction may be appropriate where the balance of convenience strongly favours making that order.14 24 The appellant contended that the following issues raised in Part 2 of his application for judicial review were appropriate for determination as questions of law by the Court of Appeal: 1. Whether it can be expected that the [Central Assessment Unit] will conduct the further assessment on the basis (approved by McIntyre J in GM v Department of Human Services [2024] SASC 23) that it involves the exercise of a discretion, and not the application of an objective legal standard based on legal criterion. 2. Whether it can be expected that the [Central Assessment Unit] will apply the interpretation of the statutory term “unacceptable risk” adopted and approved by McIntyre J in GM v Department of Human Services [2024] SASC 23. 10 Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148, 153 (Mason ACJ); Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199, 217-218 (Gleeson CJ); Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, [65] (Gummow and Hayne JJ). It was never suggested that it was relevant to consider whether damages would be an adequate remedy. 11 Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, [65] (Gummow and Hayne JJ). 12 Cayne v Global Natural Resource plc [1984] 1 All ER 225, 237, citing NWL Ltd v Woods [1979] 1 WLR 1294, 1306 (Lord Diplock), concerning the approach taken to the balance of convenience. 13 Cf, Chimaera Capital Ltd v Pharmaust Ltd (2007) 64 ACSR 332, [83]-[84] (French J), citing Bullock v The Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464, 472. 14 Cf Teachers Registration Board of South Australia v Kourlas [2024] SASCA 88, [9]-[10] regarding a stay pending appeal, where additional considerations were recognised as operating where the case involved the public interest. -- 7 of 10 -- [2024] SASCA 103 Livesey P 6 3. Whether it can be expected that the [Central Assessment Unit] will require only that it be “reasonably satisfied” that the applicant poses an unacceptable risk, rather than it be so satisfied on the balance of probabilities. 4. Whether, on a further assessment of the applicant under s 30, [Child Safety Act], it is open to the [Central Assessment Unit] to issue a [second] Prohibition Notice to the applicant when he is already the subject of a Prohibition Notice which has not been revoked and is not the subject of an application to revoke it. 25 The appellant contended that the first three issues were already raised on the appeal. Evidently, the appellant wishes to ensure that these common issues were only addressed by the Court of Appeal once. The fourth issue concerning the legal efficacy of a second prohibition notice is, it was contended, a matter of statutory construction.15 26 As it transpired, the respondent accepted that, depending on the decision made following the second ‘working with children check’, these questions were appropriate for determination by the Court of Appeal. The burden of the debate centred on whether the respondent should be enjoined from proceeding with the second ‘working with children check’. 27 The appellant’s case was that he would be prejudiced should a second notice issue because there would be a serious infringement of his legal rights and he will suffer reputational damage. In answer to the question whether his application was premature, he relied principally on The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd.16 The appellant pointed to the following statement made by the majority in that case:17 [T]he prosecutor is entitled to a prohibition provided that it has been sufficiently made to appear that a real danger exists of the suspension or cancellation of its registration being ordered. It is enough to say that to read the record is to see that there is very real ground for apprehending that such an order will be made. 28 The respondent accepted this proposition but contended that the statutory scheme in that case contained a privative clause that protected decisions made by the Australian Stevedoring Industry Board from judicial scrutiny.18 The respondent submitted that, where a privative clause restricted any challenge to a jurisdictionally flawed decision, a court may be more inclined to intervene pre-emptively because the decision might otherwise be unimpeachable. 29 The respondent contended that since the High Court’s decision in Kirk v Industrial Court (NSW),19 which ruled privative clauses constitutionally 15 Relying on Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. 16 The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100. 17 The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100, 122 (Dixon CJ, Williams, Webb and Fullagar JJ), 122-124 (Taylor J). 18 The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100, 119 (Dixon CJ, Williams, Webb and Fullagar JJ). 19 Kirk v Industrial Court (NSW) (2010) 239 CLR 531. -- 8 of 10 -- [2024] SASCA 103 Livesey P 7 invalid, there has been an increasing reluctance to prohibit specialist decision-makers from making determinations in circumstances where review and appeal rights are available:20 The High Court had said prior to Kirk that, if a “purported decision” was to be protected, then those fearing an adverse decision should be allowed to jump in early, seeking prohibition before it was made. With the restoration of the Supreme Court’s judicial review jurisdiction, things returned to normal, with courts insisting that as a matter of discretion, parties should normally exhaust their appellate avenues before exiting to judicial review. (Citations omitted.) 30 Whilst the appellant’s argument about the illegality of a second notice has prima facie merit, it is not appropriate to express any concluded view about it for the purposes of this application. The appellant has available the statutory right of a ‘full merits review’ before the Tribunal, together with appeal rights in this Court. 31 In my view, it is also relevant to observe that none of the cases relied on by the appellant concerned situations where there had already been a decision made by the relevant decision-maker, and where what is in prospect is a second decision by the relevant decision-maker.21 32 I accept that this feature may be relevant in a number of ways. It might be said by the appellant that the existing decision tends to demonstrate that the anticipated decision will be made along the same lines and exhibit the same legal flaws. Whilst I can understand why the appellant would hold that view, I am not prepared to find that there is no point to the procedural fairness process which is presently underway, and that there is no prospect that any submissions which the appellant may make (akin to the matters raised on appeal and by way of judicial review) will not be taken into account by the relevant decision-maker. Whether and to what extent the decision is flawed must await the making of the decision. 33 Finally, in my view, the fact of an existing prohibition notice weakens the appellant’s case on prejudice and the balance of convenience. 34 For these reasons, and after considering all of the circumstances of this case, I am not prepared to exercise my discretion in favour of ordering an injunction. 35 Nonetheless, I am receptive to the appellant’s concern about delay given that his appeal had been listed for hearing on 8 August 2024. I am prepared to facilitate 20 Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (7th Ed), [15.90] p 925-926. 21 See also The King v Hibble; Ex parte The Broken Hill Proprietary Company Limited (1920) 28 CLR 456 where the availability of prohibition arose because it was submitted that prohibition was not available to prevent action being taken after a jurisdictionally flawed decision had been made. The Court held that the remedy was available. In Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, 90 [12] (Gaudron and Gummow JJ), s 476(2)(a) of the Migration Act 1958 (Cth) denied the Federal Court jurisdiction to order the relief that was sought in the High Court of Australia. -- 9 of 10 -- [2024] SASCA 103 Livesey P 8 the referral of questions of law once a decision has been made, without the need for proceedings to be commenced in the Tribunal. Conclusion 36 The application for an interlocutory injunction is dismissed. 37 I direct that the applications for judicial review and discovery otherwise be heard and determined by the General Division of the Supreme Court. I will make orders to that effect. 38 Should a second prohibition notice be issued by the Central Assessment Unit I am prepared to consider referring questions of law, whether as proposed or in a form to be agreed, for determination by the Court of Appeal pursuant to s 49 of the Supreme Court Act 1935 (SA) on reasonable written notice to my Chambers. 39 I will hear from the parties on costs next week. -- 10 of 10 --