EKV

From Dyson Heydon's judgment in RCB as litigation guardian of EKV, CEV, CIV and LRV v The Honourable Justice Colin James Forrest [2012] HCA 47 -

The first allegation was that Forrest J "failed and refused to afford the affected children an opportunity to have separate and independent representation". The form in which this allegation was made underwent variations at different stages of the proceedings before this Court. There was the ambitious contention already recorded that an independent legal practitioner should have been appointed to represent the children. The allegation later metamorphosed through a series of increasingly less extreme positions. However, in all its forms, the allegation must be rejected. So far as the initial proceedings before Forrest J are concerned, his Honour did not refuse to afford the children an opportunity to have separate and independent representation: he was not asked to afford it. What Forrest J did was set in place a regime by which an expert who was an officer of the Court ascertained the affected children's views. The maternal aunt described this as "fatuous". It was not fatuous. It was, with respect, an entirely sensible course. In oral argument in this Court, the maternal aunt submitted that Forrest J should have allowed the children to be represented by a "litigation guardian". The precise meaning of this expression was not elucidated, though on 16 May 2012 application was made for the appointment of a case guardian. As the maternal aunt acknowledged, Forrest J was not asked to appoint a case guardian in the initial proceedings. The furthest of the fall-back positions advocated was that Forrest J should have "informed" the children "of the right and opportunity to apply to be represented by a litigation guardian." The maternal aunt did not demonstrate why, in the circumstances of this case, Forrest J should have done this. So far as later proceedings in which the appointment of a case guardian was requested and refused are concerned, there was no reason why Forrest J should have acceded to that application in view of the careful conclusions his Honour had reached in the initial proceedings. The second allegation was that Forrest J "failed and refused to take into account the interests of the affected children". This allegation must be rejected. His Honour did take account of their interests, but decided, in a manner about which no complaint is made, that their age and immaturity made it inappropriate to take into account their views. 

The third allegation was that Forrest J "otherwise acted contrary to the rules and principles of natural justice with respect to the affected children". This allegation too must be rejected. Forrest J accorded the affected children a measure of natural justice which was appropriate to the circumstances. 

For those reasons I agree with the orders made on 7 August 2012. 

Notices were issued under s 78B of the Judiciary Act 1903 (Cth) ("the Judiciary Act") foreshadowing a challenge to the constitutional validity of s 68L(3) of the Act. That challenge caused the Solicitors-General of the Commonwealth, South Australia and Western Australia to intervene. It also caused the matter to be set down for two days. The Solicitors-General filed very detailed written submissions on the constitutional challenge. They attended the oral hearing fully prepared to present oral argument about it. But at the start of the hearing the challenge was abandoned. The challenge was hastily made. It was lightly dropped. Thus the 78B notices caused the valuable time of busy people to be wasted. They caused costs to be thrown away. Half a day turned out to be sufficient for oral argument. No intervener applied for a costs order. But nothing in ss 78A or 78B of the Judiciary Act prevents an intervener from seeking a costs order in the circumstances of this case. That is to be borne in mind by those minded to issue s 78B notices.