A lawyer asked the Court of Appeal yesterday to allow a lawsuit against the Department of Child and Family Services to go ahead after it was struck out by an Acting Assistant Justice who had not been sworn in.

Simone Smith Bean told the Court of Appeal that Alexandra Wheatley, who approved a strikeout application in the Supreme Court as an Acting Puisne Judge, had not taken the appropriate oath of office.

Ms Smith Bean said: “If where the power lies is by the oath, then the document has no power.

“If you enforce it and later find out it has no power, it makes the whole thing null.”

Ms Smith Bean argued that if the courts were to “whitewash” the omission and allow the rulings to stand, then it would mean the oaths had no Constitutional power.

She said: “We need to make sure that each person given one of these positions takes it seriously enough that they are doing exactly what they are mandated to do and be fair.

“Even though the Registrar’s oath is not too different from the Justice’s, the way that the legislation is set out, justices and registrars are different.”

Ms Smith Bean added her client, who cannot be identified for legal reasons, is a mother who had launched a lawsuit against the DCFS in 2018 over supervision orders and care orders for her son made between 2008 and 2010.

The mother claimed that she had not appealed the decisions earlier because she was not aware she could and asked for $250,000 as compensation for pain and suffering.

Ms Wheatley – the Supreme Court Registrar who was appointed an Acting Assistant Justice for a period beginning on September 16 last year – presided over a hearing on the case on September 24 last year.

She later struck out the case on the ground that the statutory time limit for the claim had passed.

But Mrs Smith Bean said that, although Ms Wheatley had been appointed an Acting Assistant Justice, the omission of the oath of office meant the ruling could not stand.

Mrs Smith Bean accepted that the only difference between the two oaths were the words “Justice” and “Registrar”, but added that the roles were different, which meant the oaths were not the same.

She said: “They cannot adjudicate on the same things. A Supreme Court Justice can adjudicate anything, but a Registrar cannot.”

Mrs Smith Bean said it was irrelevant that Ms Wheatley could have heard the case in her role as Registrar because she did so under the banner of an Acting Justice.

She said: “The judgment in itself was given under the circumstances that she was in the capacity of a judge.”

Mrs Smith Bean admitted that a Court of Appeal ruling that the strikeout was invalid might have a knock-on effect on other decisions, but it did not mean the court should not overturn it.

Mrs Smith Bean said: “We should say they are not valid because the validity of the office is the most important part.”

She added that her client had a case that deserved to be heard by the Supreme Court.

Mrs Smith Bean said: “I do see a cause of action and I do think she should be allowed to properly plead it.

“This is what justice is all about. People come to court and sometimes they’re right, sometimes they’re wrong, but they should be given their day.

“They should be given the opportunity to prove whether they are right or wrong.”

But Brian Moody, counsel for the for the DCFS, said Ms Wheatley had made an oath of allegiance and a judicial oath when she was appointed as Registrar.

He said: “There is a question open to the court whether she swore the oaths in capacity of acting judge – she says she thinks she did – but certainly perhaps without more the courts will not accept it.”

But he argued the decision to strike down the case was correct and should be upheld – despite any perceived problems with Ms Wheatley’s appointment.

He said: “The courts have long recognised the utility and purpose of upholding judicial acts and decisions, notwithstanding technical defects with the appointment of the person purporting to exercise that judicial authority.”

Mr Moodie said there was a longstanding doctrine not to overturn decisions because of minor defects of appointment – provided the decision maker was in the post, there was a “right” for the person to hold the office and the decisions made must be for the benefit of third parties rather than the decision-maker.

He said: “They must actually think they are clothed with that authority, and as you can see from the affidavit of Ms Wheatley, it certainly was her opinion that she was properly appointed and no issue was raised by the parties at that time as to her appointment.”

Mr Moodie also argued the court could and should consider if other decisions would be rendered null and void by a ruling to overturn as it could cause greater inconvenience and injustice.