GR v Family and Community Services

[2021] NSWSC 39

Supreme Court

New South Wales

Medium Neutral Citation:

GR v Family and Community Services [2021] NSWSC 39

Hearing dates:

18 December 2020

Date of orders:

18 December 2020

Decision date:

18 December 2020

Jurisdiction:

Equity

Before:

Rees J

Decision:

Contempt motion dismissed under r 13.4 Uniform Civil Procedure Rules 2005 (NSW), with costs.

Catchwords:

CIVIL PROCEDURE — dismissal for want of prosecution – sustained failure to comply with directions to serve evidence in support of contempt motion — evidence ultimately served inadequate — experienced self-represented litigant — delay alone insufficient to dismiss proceedings.

CIVIL PROCEDURE — abuse of process — collateral purpose — applicant threatened respondents while failing to prosecute contempt motion — statement of charges prolix — evidence in support defective — no suggestion that problems will be remedied — motion seeks to cavil with Children’s Court judgment on appeal — motion seeks to re-litigate judgments in these proceedings — motion summarily dismissed.

Legislation Cited:

Civil Procedure Act 2005 (NSW) s 56

Uniform Civil Procedure Rules 2005 (NSW) rr 12.7, 13.4

Supreme Court Rules 1970 (NSW) rr 55.3, 55.7, 55.8

Cases Cited:

Australian Securities and Investments Commission v Sigalla (No 4) (2011) 80 NSWLR 113; [2011] NSWSC 62

Bellerive Homes Pty Ltd v FW Projects Pty Ltd [2019] NSWSC 193

Commonwealth Bank of Australia v Salvato (No 4) [2013] NSWSC 321

Coward v Stapleton [1953] HCA 48; (1953) 90 CLR 573

Furlong v Wise & Young [2019] NSWSC 1718

G v Family and Community Services [2019] NSWSC 229

Ghosh v NineMSN Pty Ltd (2015) 90 NSWLR 595; [2015] NSWCA 334

GR v Secretary, Department of Communities and Justice [2020] NSWSC 739

GR v Secretary, Department of Communities and Justice [2020] NSWSC 645

GR v Secretary, Department of Communities and Justice [2020] NSWSC 892

GR v Secretary, Department of Families, Disabilities and Community Services [2019] NSWCA 277

GR v Secretary, Department of Families, Disabilities and Community Services [2020] NSWCA 79

GR v Secretary, Department of Family and Community Services and Justice [2019] NSWCA 177

GR v Secretary, Department of Family and Community Services and Justice [2019] NSWSC 1073

GR v Secretary, Department of Family and Community Services and Justice [2019] NSWSC 1146

GR v Secretary, Department of Family and Community Services and Justice (No 2) [2019] NSWSC 1725

GR v Secretary, Department of Family and Community Services and Justice [2020] NSWSC 259

GR v Secretary, Department of Family and Community Services and Justice [2020] NSWSC 348

GR v Secretary, Department of Family and Community Services and Justice (No 4) [2020] NSWSC 457

GR v Secretary, Department of Family and Community Services and Justice [2020] NSWSC 607

GR v The Department of Communities & Justice [2020] NSWSC 1622

In the matter of Jimmy’s Recipe Pty Limited [2020] NSWSC 93

Inghams Enterprises Pty Ltd v Timania Pty Ltd [2005] FCAFC 155; (2005) 221 ALR 823

James v Ash Electrical Services Pty Ltd [2009] NSWSC 30; (2009) 69 ACSR 596

Maslen v Official Receiver [1947] HCA 30; (1947) 74 CLR 602

Matthews v Australian Securities and Investments Commission [2009] NSWCA 155

McLeod v Henty (1900) 25 VLR 648

Re AB (No 2) [2019] NSWSC 566

Re AB [2019] NSWSC 316

Spindler v Balog (1959) 76 WN (NSW) 391

Taylor v Whelan [1962] VR 306

Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509

Texts Cited:

Ritchie’s Uniform Civil Procedure NSW, [12.7.5], [14.28.10]

Category:

Principal judgment

Parties:

Secretary, Department of Communities and Justice (Applicants/Defendant)
GR (First Respondent/Plaintiff)
The Father (Second Respondent)
Independent Legal Representative (Third Respondent)

Representation:

Counsel:
Mr M Anderson (Applicants/Defendant)
GR (self-represented) (First Respondent/Plaintiff)
The Father (in person) (Second Respondent)
Ms E Stolier (Third Respondent)

Solicitors:
Crown Solicitor (Applicants)

File Number(s):

2019/62836

Publication restriction:

Restriction on publication of anything that might identify the child

Ex Tempore Judgment

1. HER HONOUR: This is a motion (the dismissal motion) by the Secretary, Department of Communities and Justice and the Minister for Families, Communities and Disability Services (DCJ) pursuant to rule 12.7 (want of prosecution) or rule 13.4 (frivolous and vexatious) of the Uniform Civil Procedure Rules 2005 (NSW) for dismissal of a motion filed by the plaintiff (the contempt motion).

2. The respondents to the dismissal motion are the plaintiff, being a mother referred to as “GR”, the mother’s husband and the independent legal representative for their child.

3. In support of the dismissal motion, DCJ read affidavits by the Manager Casework for the child, together with four affidavits of service and attempted service of the dismissal motion. In opposition to the dismissal motion, the mother read her affidavit affirmed on 24 February 2020 in respect of the alleged acts of contempt and two affidavits in respect of service of the contempt motion. There was no cross examination.

4. As I indicated when giving this judgment ex tempore, I would set out in this published judgment specified paragraphs of: the parties’ submissions; authorities; the principal judgment given in related Children’s Court proceedings; a judgment of Sackar J in related proceedings in this Court (the Children’s Court appeal); and, Ward CJ in Eq’s judgment in GR v Secretary, Department of Communities and Justice [2020] NSWSC 739 (GR v DCJ) summarising the procedural history of this and the Children’s Court proceedings. As to the latter, I have endeavoured to summarise her Honour’s judgment in what follows, rather than reproduce it. I have also overlaid – in the hope that it may assist the reader – the relevant contempt charges which relate to each juncture in that history.

CONTEMPT MOTION

5. The respondents to the contempt motion are DCJ, the mother’s husband and the independent legal representative for their child. By the contempt motion, the mother seeks the following orders:

1.   Summary charge of Contempt of Court against the ILR [independent legal representative] of the 4th defendant [the child] and the defendants listed as servants and agents of the 1st and 2nd defendants [DCJ] as in the Statement of Charge attached to this Notice of Motion.

2.    Costs for this application and moiety.

3.    Any other orders the Court sees fit.

6. Rule 55.7 of the Supreme Court Rules 1970 (NSW) provides:

55.7   Statement of charge

A statement of charge, that is, a statement specifying the contempt of which the contemnor is alleged to be guilty, shall be subscribed to, or filed with, the notice of motion or summons.

7. The statement of charge annexed to the contempt motion lists 19 organisations or persons as defendants. In addition to the respondents to the contempt motion:

1. the second to seventh, ninth and fourteenth to seventeenth defendants are employees or former employees of DCJ;

2. the tenth to twelfth defendants are Hunter New England Health and two paediatricians working at John Hunter Hospital; and

3. the eighteenth and nineteenth defendants are Impact Youth Services and an employee of that service (Impact Youth Services provides the child’s day to day carers).

8. For each charge, the particular defendants to which that charge relates are identified, for example, Charge 1 concerns “(D 1, 2, 8, 9)”. To the extent that the defendants to the statement of charge go beyond the respondents to the contempt motion then, as I understand the prayers for relief sought in the contempt motion, DCJ is said be liable for the contempt of such additional defendants as DCJ’s “servants and agents”.

9. The statement of charge itemises 88 charges of contempt of court. The charges concern events from 28 June 2018 on in respect of, essentially, DCJ’s actions taken in respect of the child. The statement of charges covers a wide range of subject matter including alleged breach of court orders, allegations that DCJ has misled the Court, and DCJ’s dealings with the child or parents more generally. It is not readily apparent whether the contempt sought to be prosecuted is civil or criminal contempt. This distinction is explored in In the matter of Jimmy’s Recipe Pty Limited [2020] NSWSC 93 at [67]-[68] citing Furlong v Wise & Young [2019] NSWSC 1718 per Ward CJ in Eq at [94]-[95] and Australian Securities and Investments Commission v Sigalla (No 4) (2011) 80 NSWLR 113; [2011] NSWSC 62 per White J at [79]-[81]. For the purposes of what I am asked to decide today, it is enough to say that the charges advanced appear to be both civil and criminal contempt.

10. Evidence in support of a charge of contempt must be provided by affidavit: rule 55.8, Supreme Court Rules. Here, the evidence in support of the charge comprises the mother’s affidavit affirmed 24 February 2020, also read in opposition to the dismissal motion. Some observations can immediately be made about this affidavit.

11. First, the mother’s affidavit does not specifically address the statement of charges. The affidavit was affirmed some six weeks before the contempt motion was filed and, apparently, for a different purpose.

12. Second, whilst the charges of contempt date from events in June 2018 on, the affidavit only refers to matters said to have occurred from February 2019 on. The earlier charges of contempt are not supported by the mother’s affidavit.

13. Third, the affidavit was sworn on 24 February 2020 whilst the charges of contempt allege various matters which are said to have happened since; the affidavit does not support those charges either. As counsel for the independent legal representative for the child observed, the affidavit says nothing about her client. The affidavit pre-dates the involvement of four other defendants with the mother and does not say anything about them either. The mother accepted that her affidavit did not support the contempt charges against five defendants, but submitted that her affidavit otherwise supported all of the contempt charges.

14. Fourth, as counsel for DCJ submitted, the affidavit of 24 February 2020 does not contain evidence in admissible form to support the charges of contempt. The affidavit is, broadly speaking, in the form of submissions and is not in a form that would be admitted into evidence in support of allegations of contempt. It rather indicates what the mother would like to argue at the hearing of the contempt motion rather than comprises evidence by which allegations of contempt might be established.

15. Fifth, the affidavit pre-dates the decisions of the President of the Children’s Court, Judge Johnstone on 27 February 2020 and 3 April 2020, to which I will return at [43]. DCJ submitted, and it appears to be the case, that the statement of charges does not take these findings into account but seeks to maintain the position that the mother maintained in the Children’s Court despite the Court’s findings to the contrary.

16. Sixth, some of the mother’s affidavit is obviously wrong. For example, in paragraph 4, it is said:

On 7 November 2019, their Honours Brereton JA and Emmett AJA found the defendants in contempt of Kunc J’s orders of 16 August 2019. …

Their Honours’ judgment, GR v Secretary, Department of Families, Disabilities and Community Services [2019] NSWCA 277, does not reveal such a finding, albeit contains some favourable observations in respect of the mother’s substantive claim, to which I will return at [32].

FACTS

17. Given the nature of the relief sought by DCJ, it is necessary to review the history of these and related Children’s Court proceedings. Insofar as DCJ’s affidavits set out the history of proceedings in the Children’s Court and this Court, I am greatly assisted by Ward CJ in Eq’s summary as at 16 June 2020 in GR v DCJ at [21]-[116], which I gratefully adopt and have drawn upon in what follows at [18] to [63], although it will also be necessary to refer to events since her Honour’s judgment, which I have taken up at [64].

Children’s Court proceedings

18. The child has been diagnosed with autism and a severe eating disorder. On 29 June 2018, the child was assumed into the care of the Secretary at a time when the child was seriously underweight. Counts 1 to 3 in the statement of charge are said to have occurred at this time: DCJ and its employees are said to have made false statements to the Children’s Court to procure an arrest warrant for the child, ordered the paediatricians to keep the child prisoner without legal authority, stole custody of the child on false grounds, and ordered the force feeding of the child without legal authority or medical need.

19. On 5 July 2018, interim orders were made by the Children’s Court, allocating parental responsibility for medical issues to the Minister and placing the child under the supervision of the Secretary. On 28 August 2018, final care orders were made by the Children’s Court, placing the child under the supervision of the Secretary for 12 months and accepting undertakings given by the parents. Counts 75 and 76 in the statement of charge are said to have occurred at this time, being making deliberately false and misleading statements to the Children’s Court and deliberating misleading the parents “in order to fraudulently invoke the jurisdiction of the Children’s Court”.

20. Problems ensued with the undertakings given by the parents and, on 21 February 2019, the child was again assumed into care and admitted to the Intensive Care Unit at John Hunter Hospital. Counts 4 to 13 in the statement of charge are said to have occurred at this time. In short, it is said that DCJ and its employees authorised that the child be placed in an induced coma and force fed without any medical need, without legal guardianship and in breach of the orders made by the Children’s Court on 28 August 2018. The child is said to have been stolen from school and kidnapped, including by making false statements, without notifying the parents and in breach of the Children’s Court orders. The child is said to have been imprisoned and starved. DCJ is said to have made false statements to the police who evicted the mother from the hospital in breach of the Children’s Court orders. The hospital and its paediatricians are said to have deliberately misled the Court on each and every subsequent court hearing, both in the Children’s Court and this Court, to support their continuing imposition of medical treatment on the child.

Commencement of these proceedings

21. On 25 February 2019, the mother commenced these proceedings in the Common Law Division of this Court, seeking to invoke the Court’s parens patriae jurisdiction. The mother sought to discharge of the orders made by the Children’s Court on 28 August 2018. The application was dismissed by Button J.

22. On 26 February 2019, the Secretary filed an application with the Children’s Court to rescind the orders made on 28 August 2018 and to seek interim and final orders placing the child under the parental responsibility of the Minister. On 27 February 2019, the Children’s Court made an interim order allocating parental responsibility for the child to the Minister until further order of the Children’s Court. Counts 14, 15 and 88 in the statement of charge are said to have occurred at this time, being concealing evidence from the Children’s Court, misleading the Children’s Court and thereafter imprisoning the child and subjecting him to wholly inappropriate and unauthorised medical treatment. There are the first counts to which reference is made in the mother’s affidavit affirmed on 24 February 2020.

23. On 7 March 2019, the mother filed a second Amended Summons in the Common Law Division proceedings, seeking to set aside the interim order of the Children’s Court, an urgent recovery order for the child and to injunct DCJ. That application was dismissed by Schmidt J: G v Family and Community Services [2019] NSWSC 229. On 14 March 2019, counts 16 and 77 in the statement of charge are said to have occurred, being in similar terms to counts 14, 15 and 88.

24. On 15 March 2019, the proceedings in the Common Law Division were transferred to the Equity Division and joined to proceedings that had been commenced by the Secretary, who was seeking treatment orders under the Court’s parens patriae jurisdiction. A treatment order was made by Pembroke J on 15 March 2019. These proceedings were then case managed by Kunc J, who continued the treatment orders in respect of the child and also made orders for contact between the parents and child and for medical updates and information to be provided to the parents: Re AB [2019] NSWSC 316. Counts 17 to 21 in the statement of charge are said to have occurred at this time, comprising of lying to Pembroke J and then Kunc J, failing to communicate with the parents and thereby facilitating the continuing unwarranted medical treatment of their son, breaching Kunc J’s orders when appointing a doctor to treat the child, and allegedly locking up the child in a mental ward without clinical justification or legal authority.

25. On 15 May 2019, the treatment order was discharged on the application of the Secretary: Re AB (No 2) [2019] NSWSC 566. Count 22 in the statement of charge is said to have occurred at this time, when it is alleged that DCJ ordered the Sydney Children’s Hospital to discharge the child into the care of DCJ and rush him to Newcastle, without seeking leave of the Court.

26. On 17 May 2019, the mother filed a third Amended Summons seeking substantially the same relief at the 7 March 2019 summons. Counts 23 and 24 are said to have occurred at this time, when it is said that the child was re-admitted by DCJ to John Hunter Hospital and subjected to medical treatment in contempt of the orders made by Kunc J on 15 May 2019. On 24 June 2019, the third Amended Summons came before Lindsay J, who summarily dismissed the application. The mother successfully appealed the summary dismissal: GR v Secretary, Department of Family and Community Services and Justice [2019] NSWCA 177 at [47]-[53]. On 29 July 2019, Lindsay J reheard and dismissed the third Amended Summons.

27. On 9 August 2019, the mother filed a fourth Amended Summons, seeking similar relief to the 7 March 2019 summons. On 16 August 2019, Kunc J refused to grant the relief sought but made orders relating to the parents’ contact with the child and involvement in his care. Count 25 in the statement of charge is said to have occurred at this time, when various defendants are said to have misled Kunc J by presenting deliberating false evidence. On 21 August 2019, Kunc J delivered reasons for the orders made on 16 August 2019: GR v Secretary, Department of Family and Community Services and Justice [2019] NSWSC 1073. Counts 26 to 28 in the statement of charge are said to have occurred at this time, being re-admitting the child to John Hunter Hospital without informing the parents and subjecting the child to unnecessary medical treatment in contempt of Kunc J’s orders of 16 August 2019.

28. On 28 August 2019, the mother sought to re-list the proceedings before the Duty Judge. On 3 September 2019, Slattery J dismissed the application as his Honour did not discern exceptional circumstances to warrant any intervention of the kind sought by GR in the Court’s parens patriae jurisdiction: GR v Secretary, Department of Family and Community Services and Justice [2019] NSWSC 1146 at [60]. Count 29 in the statement of charge is said to have occurred at this time, being making deliberately false statements to Slattery J to obstruct justice and “continue the false imprisonment, deliberate starvation and aggravated assault and battery against [the child] by unnecessary induced comas and restraints for force feeding …”.

29. On 12 September 2019, the mother made another application to re-list the matter before the Duty Judge, seeking similar relief. Robb J, then Duty Judge, refused to grant the relief sought for similar reasons as those expressed by Slattery J. On 17 September 2019, the mother filed a motion seeking essentially the same relief. On 18 September 2019, Robb J’s associate communicated by email to the parties that “[h]is Honour has directed me to inform [the mother] that she should carefully consider the consequences of applying for relief that has already been refused, as that could involve the mother engaging in an abuse of the Court processes”. The mother pressed the application. On 19 September 2019, Robb J delivered an ex tempore judgment noting that, at the mother’s request, he would give the mother an opportunity to serve further evidence in support of the application and would review that material. A further request to re-list the matter was made by the mother to Robb J’s associate on 16 October 2019, which was refused.

21. Counts 30 to 34 of the statement of charge are said to have occurred in September and October 2019, being that in contempt of the orders made by Kunc J on 16 August 2019, DCJ refused the mother access to her child, failed to provide medical updates, starved the child, administered unnecessary medical treatment and made deliberately false statements to Robb J. In evidence is an email from DCJ to the parents on 16 September 2019 suspending their visits with the child until further notice, and a further email from the caseworker of 24 September 2019 arranging a visit and providing a medical update.

22. On 1 November 2019, the child was moved to the Eating Disorder Service at Westmead Children’s Hospital. The parents were informed by an email from the caseworker, who also advised, “Until further assessments can occur, all contact between yourselves and [the child] will be put on hold. We will review this weekly with Westmead and advise when your visits can resume”. Counts 26, 37, 40, 41, 45, 46, 50, 51 concern this period, when DCJ is said to have acted in contempt of Kunc J’s orders made on 16 August 2019.

Appeal

32. On 7 November 2019, the mother’s application for leave to appeal from the decision of Slattery J of 3 September 2020 was heard. Brereton JA, with whom Emmett AJA agreed, refused leave to appeal. Brereton JA did, however, observe that the mother’s substantive claim appeared meritorious. At [15]-[23], their Honours stated:

15   Viewed broadly, there are not insignificant marks of strength to the applicant’s substantive case. The report of Professor Einfeld, in particular, provides significant support for the argument that if – as appears to be the case – the hospitals have not been able to provide a viable solution after nine months, then it is time to see if the parents cannot do any better. The second report of Professor Einfeld – which I think puts the case more strongly than the first – was not before Slattery J, though it was provided to Robb J in chambers before the last of his Honour’s in chambers decisions.

16   Before this Court, further matters emerged which might well demonstrate a change in circumstances since the judgment of Kunc J. I have referred above to the orders his Honour made in respect of contact with the parents and information about hospitalisation. In an affidavit which was handed up to the Court this morning, Ms Anne Marie Connelly, a Manager Client Services in the Department of Communities and Justice (previously the Department of Family and Community Services), deposed, amongst other things, that [the child] was transferred from John Hunter Hospital to Sydney Children’s Hospital at approximately 10.45am on 1 November 2019; that at 2.02pm that day (that is to say after the transfer had taken place) his parents were notified that he had been transferred; and also that contact visits would not take place until assessments had taken place. It was said that the department had delayed informing the parents of the transfer date and time, due to concerns that the mother may present to the hospital which could cause distress to [the child]. However genuine that view might have been, it is not easily if at all reconcilable with order 3 made by Kunc J, and it was not for the Department to make that decision.

17   Moreover, at paragraph 30 of the same affidavit, it is said that contact was suspended between 14 September and 24 September. How that is reconcilable with order 2 made by Kunc J, which limits the forming of an opinion that contact is undesirable to a particular occasion, is also not at all clear. It is therefore not difficult to understand why the parents might have come to the view that the Department is acting somewhat unilaterally – in their words, as a “law unto itself” – in these respects. Those matters, which tend to show that what Kunc J was seeking to implement was being circumvented if not defeated, might amount to a change of circumstances which could be raised on a new application in the Equity Division. Most, if not all, of these circumstances arose after the last of the judgments the subject of the present application, and could not have been raised on those applications.

18   In addition, although this is not clear, there remains a concern that [the child] might be receiving treatment that would require the Court’s permission in accordance with cases such as Marion’s Case [6] and Director‑General, Department of Community Services; Re Thomas. [7] Whether [the child] has been subject to such restraints or confinement as exceeds what is within the scope of ordinary parental responsibility is not at all clear at this stage, but it is equally not clear that he has not been.

19   Some submissions have been made concerning the mother’s parenting capacity, which is said to be a very important consideration in the Children’s Court proceedings. In many care proceedings, the parenting capacity of a parent is a vital issue. In this case, it will ultimately be a matter for the President of the Children’s Court to weigh the various issues, although one might be attracted to the view that the crucial question here is what course is best going to encourage and incentivise [the child] to eat, rather than concerns about marginal defects in parenting capacity arising from a supposed psychotic illness which, if it exists at all, certainly does not appear to be florid. This is a case in which, perhaps exceptionally, the short term seems to be at least as important, if not more important, than the long term future for [the child].

20   All those matters, as I have said, give marks of strength to the parents’ case. Against that, on an application for leave to appeal, there are a number of powerful considerations. The first is the proximity, indeed now imminence, of a comprehensive and detailed hearing by a specialist Court. That Court, presided over by a very experienced judge in the relevant specialist jurisdiction, will be able to examine, in much more detail and with much more thoroughness than this Court could, the issues that arise. Moreover, there has been, as it were, a consistent approach since the judgment of Kunc J on 16 August of this year, that the proceedings should be managed in a way which facilitates progressing to a determination by the President of the Children’s Court consequent upon what is now that imminent hearing.

21   Despite the attraction of the submission that it is now time to “give the alternative a go” and return [the child] immediately to the parents, I am – not without a little regret, but nonetheless firmly – of the view that it would be quite irresponsible and incorrect for this Court to derail the imminent proceedings in the Children’s Court, or to pre-empt them by making a decision on what is, after all, a very short hearing, without cross‑examination of lay or expert witnesses, on issues that are difficult and controversial.

22   Moreover, it is not established clearly, or for that matter at all, that there is seriously arguable error in the judgment of Slattery J, or those of Robb J, on the facts that were known to them and before them at the time. In my view, their Honours were, with respect, right to say that the circumstances presented to them did not amount to a sufficient change of circumstances since 16 August to justify departing from the course carefully charted by Kunc J towards a full and final hearing in the Children’s Court.

23   It may be that the matters to which this Court has adverted, and in particular the fact that Kunc J’s regime has in some respects apparently been circumvented, could warrant a different outcome on a further application to the Equity Division. That said, the parents might be well advised to focus for the time being on the impending hearing in the Children’s Court, rather than on a further application to the Equity Division.

33. Counts 38 to 40 of the statement of charge contend that DCJ made deliberately false statements to the Court of Appeal, refused to comply with their Honours’ orders and was in contempt of the orders of the Court of Appeal.

34. On 11 November 2019, the final hearing before the Children’s Court commenced before President Johnstone and proceeded until 15 November 2019, resuming on 25 and 26 November 2019. By counts 42 and 43 of the statement of charge, DCJ is said to have made constant, deliberately false statements to the President to obstruct justice and abuse a disabled child.

Parens patriae orders by this Court

35. The hearing before the Children’s Court was adjourned on 26 November 2019 to allow for an urgent hearing to take place before Kunc J, following an application by the mother to his Honour. By count 44 of the statement of charge, DCJ is said to have made deliberately false statements to Kunc J during the hearing.

36. On 29 November 2019, Kunc J made orders under the parens patriae jurisdiction of the Court and delivered reasons on 4 December 2019, concluding that there had been a material change in circumstances so as to warrant the exercise of the parens patriae jurisdiction by reason of the extent of the period of time the child had then been in hospital; that the Children’s Court proceedings had to be adjourned to January 2020 with the consequence of further delay; and by reason of the observations made by the Court of Appeal, already reproduced in this judgment: GR v Secretary, Department of Family and Community Services and Justice (No 2) [2019] NSWSC 1725 at [1], [5], [11] and [49], [50]. Kunc J made orders for a proposed treatment plan for the child’s transition out of hospital, but noted that whether that transition ended with the parents or otherwise was for the Children’s Court to determine.

37. By count 74 of the statement of charge, DCJ is said to have thereafter acted in contempt of Kunc J’s orders. The mother appears to have said as much to DCJ’s employees at the time, in the course of arranging visits to her child, as evidenced by emails from this period. By counts 47 to 49 of the statement of charge, DCJ is said to have prevented the mother from visiting her son and used security and police to eject her from the hospital in contempt of his Honour’s orders. An email from DCJ on 27 December 2019 confirms that the police escorted the mother from the hospital on Christmas Day.

38. From 6 to 10 January 2020, the final hearing of the Children’s Court proceedings was concluded and judgment reserved.

39. On 13 January 2020, the mother emailed a motion to Robb J, sitting as Duty Judge, seeking orders in similar terms to earlier amended summonses, together with orders relating to the implementation of the proposed treatment plan ordered by Kunc J and a stay of the final orders of the Children’s Court. On 17 January 2020, Robb J refused to make such orders. On 24 January 2020, the mother emailed a similar motion to the associate to Henry J, then Duty Judge, which orders her Honour refused to make on 31 January 2020. By the statement of charge, DCJ is said to have misled Henry J in various ways and to have breached a direction made by Henry J to mediate with the mother.

40. In January 2020, counts 51 to 69 and 72 and 73 of the statement of charge allege DCJ was in contempt of the orders of Kunc J of 29 November 2019 and undertakings given to the Court of Appeal on 7 November 2019 in connection with the treatment of the child and dealings with the parents, including evicting the parents from the hospital during a visit. An email from DCJ of 23 January 2020 confirms that the visit in question was highly problematic, suggesting “it was a clear incident of [the mother] exposing [the child] to domestic violence”. On 24 January 2020, the mother replied that she would “sue all of you for contempt of court and false imprisonment”.

41. In February 2020, by counts 70, 71 and 79 of the statement of charge, DCJ is said to have acted in contempt of Henry J’s recommendation to mediate and attend to the orders made by Kunc J on 29 November 2019 in respect of contact visits, medical care and consultation with the parents. In evidence are several February 2020 emails in respect of contact visits and medical updates. The mother says, in her affidavit, that on 6 February 2020 she visited the hospital where her son was being given the last rites and, on 11 February 2020, saw blood spatters on her son and, on 12 February 2020, saw a caseworker bullying her son.

42. On 24 February 2020, the mother affirmed the affidavit on which she relies in support of the contempt motion and in opposition to the dismissal motion. I infer that the affidavit was prepared to support a further application to this Court to exercise its parens patriae jurisdiction in respect of the child given the matters about which the mother was then concerned.

Judgment of Children’s Court

43. On 27 February 2020, the President of the Children’s Court handed down his judgment. Judge Johnstone found at [428]:

…I am satisfied that it was necessary to remove the child on 28 June 2018, due to the parents failure to present the child for medical examination at a time when the child’s health was particularly precarious, and he required urgent medical attention, and they failed to comply with [a] Notice under s 133 of the Care Act.

I am satisfied that it was necessary to again assume the child into care on 21 February 2019, due to the parents’ breach of their undertakings to the Court, the parents failure to permit access to the home and the child for monitoring and assessment by caseworkers, the NDIS service and even his Court appointed Lawyer; the ongoing violence in the home, and the child’s deteriorating medical condition.

I am satisfied the hospitalisation of and medical attention given to [the Child] has been in his best interest and reasonably required, following appropriate consultation and discussion, or pursuant to approval by the Supreme Court exercising parens patriae jurisdiction.

The caseworkers in this matter have in my view acted at all times in which they believed to be the best interests of the child; and all decisions made as to the safety, welfare and well-being of the child have been taken carefully and cautiously, and where appropriate on the medical evidence of the professionals charged with the child’s care.

The evidence does not support the contention that the child has been imprisoned or inappropriately treated, or otherwise abused in hospital or in care.

The child is not blind in one eye …

The wishes of the child and his stated desire to go home have been well articulated, documented and heard. But, as the evidence shows, his developmental capacity is inadequate to enable those wishes to be acted upon, unless otherwise consistent with the medical evidence.

44. Judge Johnstone was satisfied that the mother had perpetrated physical and emotional abuse against the father. The evidence also revealed a significant unacceptable risk of harm of abuse to the child and, due to the mother’s lack of insight, that risk was not yet capable of being sufficiently ameliorated to permit restoration at the present time: at [433]-[435].

45. His Honour was also satisfied, in light of the unanimous view of the three conclaved expert medical witnesses before Kunc J and accepted by his Honour, that there should be no immediate restoration to the parents: at [436]. Further, at [439]-[440]:

439   To the present time and continuing, the parents have collectively and individually demonstrated a total inability to safely care for [the child]. Their failure to ensure [the child] was appropriately fed and nourished is well documented. They were dysfunctional and incapable of managing [the child]. They have allowed themselves to be manipulated, physically abused and held to ransom by [the child]. They have consistently failed to work with the medical professionals and caseworkers in a cooperative and respectful way. They have not demonstrated any capacity to change, and continue to be critical of the medical professionals and caseworkers. They still have no insight into [the child]'s needs or his precarious medical condition, and would be totally incapable of caring for the child alone. They refuse to accept the need for ongoing medical supervision of [the child].

440   The parents persist in denigrating the professionals involved in the child’s care, and saying inappropriate things to the child, despite numerous warnings and admonitions as to the inappropriateness of such conduct.

46. Judge Johnstone found that there was no realistic possibility of restoration of the child to the parents within a reasonable period and directed the Secretary to prepare an amended care plan addressing a permanency plan: at [467].

Further applications to this Court

47. On 2 March 2020, the mother sought to re-list these proceedings before Kunc J and, on 5 March 2020, DCJ filed a motion seeking to discharge all previous orders in these proceedings and to dismiss the amended summons, presumably in light of the judgment of President Johnstone. Kunc J made various directions to progress both applications.

48. On 18 March 2020, Kunc J made orders in the inherent jurisdiction of the Court to the effect that the parents could only bring an urgent interlocutory application in the Duty List with the leave of the Duty Judge: GR v Secretary, Department of Family and Community Services and Justice [2020] NSWSC 259. His Honour was satisfied that the mother’s pattern of frequent email applications to the associate to the Duty Judge had reached the point of being vexatious and an abuse of process: at [19]. Notwithstanding Kunc J’s orders, the mother emailed the associates to Lindsay J and Robb J from 20 March 2020 on, requesting that the proceedings be relisted, that the child be returned to her care, that the Children’s Court proceedings be dismissed and its orders set aside.

49. On 2 April 2020, Robb J varied the orders made by Kunc J on 18 March 2020 by requiring the mother, if making a further application, to support it by a medical report explaining inter alia the urgent medical necessity for a hearing: GR v Secretary, Department of Family and Community Services and Justice [2020] NSWSC 348. Robb J observed that, although the mother had had a measure of success in the Court of Appeal on one occasion, the Court had consistently refused to make any order that prevented the Children’s Court from determining the proceedings before it: at [4]. Robb J noted that the distraction and waste of judicial time that flowed from the mother’s conduct should not be underestimated, noting that the proceedings had now been before a judge or registrar 33 times; 15 judgments had been delivered by the Court and the Court of Appeal; and numerous communications from the mother to the staff of the Duty Judges caused the waste of considerable time: at [37]-[39].

Contempt motion filed

50. On 3 April 2020, President Johnstone made final orders in the Children’s Court proceedings, allocating all aspects of parental responsibility for the child to the Minister until the child attains 18 years of age.

51. The same day, the contempt motion was filed, seeking a wide range of relief including a stay of the Children’s Court orders, that the child be returned to the mother’s care and punishment for contempt. Annexed to the motion as it then stood was a statement of charge listing 12 defendants charged collectively with 74 counts of contempt of court.

52. Also, on 3 April 2020, DCJ applied to have the orders made by Kunc J on 29 November 2019 discharged. Kunc J listed both applications for hearing on 24 April 2020.

Another appeal

53. On 9 April 2020, the mother filed a summons seeking leave to appeal the decision of Robb J of 2 April 2020, together with a motion seeking that the child be returned to her care and other orders sought in the contempt motion.

54. On 24 April 2020, Basten JA dismissed the mother’s motion, noting that the orders sought were not in the nature of a stay but an “attempt to obtain the final relief varying the status quo, being orders which had been sought, but not obtained in the Court below”: GR v Secretary, Department of Families, Disabilities and Community Services [2020] NSWCA 79 at [9].

53. Also, on 24 April 2020, the mother unsuccessfully attempted to file an amended summons in these proceedings, then before Kunc J, who did not permit that course. The mother also filed the Children’s Court appeal.

Dismissal of these proceedings save for contempt motion

56. On 24 April 2020, Kunc J dismissed the mother’s amended summons dated 5 March 2019: GR v Secretary, Department of Family and Community Services and Justice (No 4) [2020] NSWSC 457. By count 80 and 81 of the statement of charge, DCJ is said to have deliberately misled Kunc J at this hearing. Kunc J noted that the purpose of the proceedings had been to recover the child and, the mother having now filed an appeal from the decision of the Children’s Court, it was an abuse of process for there to be two sets of proceedings extant which sought the same relief: at [29]. In respect of the contempt motion, Kunc J noted at [33]:

… in her motion dated 3 April 2020 …the mother included prayers for relief in relation to alleged contempts of the Court’s orders. Whatever the merits of that application, the Court has not been specifically asked to dismiss it summarily. So much of that motion as relates to the claim for contempt should be allowed to survive the dismissal of the balance of the proceedings, so that the claim can continue to be case managed in the ordinary course by the Registrar.

His Honour thus permitted the contempt motion to proceed in respect of prayers 5, 10 and 11 (which concerned contempt) only. Kunc J listed the contempt motion for directions before the Registrar on 27 April 2020.

57. Whilst it is necessary to track the progress of the contempt motion in more detail, for completeness, these proceedings and the Children’s Court appeal thereafter continued as follows.

58. On 27 April 2020, the mother filed a motion in the Children’s Court appeal, seeking a stay of the Children’s Court orders and an order that the child be returned to her care. The application was listed before Slattery J for hearing on 14 May 2020. The day before the hearing, however, the mother emailed the associate to the Duty Judge, Williams J, seeking an urgent treatment order but without first complying with the conditions imposed by Kunc J and Robb J. Her Honour’s associate informed the mother accordingly.

59. On 14 May 2020, Slattery J heard the mother’s application and, on 22 May 2020, gave judgment refusing her application: GR v Secretary, Department of Family and Community Services and Justice [2020] NSWSC 607. About half an hour later, the mother emailed my chambers, as I was then Duty Judge, seeking to re-list these proceedings seeking the same relief that had just been refused by Slattery J in the Children’s Court appeal. I declined to entertain the application that evening, noting that it sought essentially the same relief, between essentially the same parties, on essentially the same evidence as had been determined by Slattery J that day. I made orders in chambers standing these proceedings over to 26 May 2020 before Ward CJ in Eq for directions, when the Children’s Court appeal was also listed before her Honour for directions.

60. In May 2020, by counts 82, 84 and 86 of the statement of charge, DCJ is said to have deprived the child of contact with the mother and abused its parental responsibility and authorised medical treatment without obtaining a treatment order.

Further appeals

61. On 26 May 2020, the mother filed a motion in Court of Appeal proceedings, seeking orders to set aside Slattery J’s judgment of 22 May 2020 and seeking the same orders as the motion of 22 May 2020 sought to be listed before me. On 27 May 2020, Leeming JA dismissed the mother’s application: GR v Secretary, Department of Communities and Justice [2020] NSWSC 645.

62. On 28 May 2020, the mother made an almost identical application to White JA, who ordered that the motion be transferred to the Equity Division and dismissed: GR v Secretary, Family, Disability and Community Services [2020] NSWSC 668.

63. On 16 June 2020, Ward CJ in Eq refused leave to file the motion of 22 May 2020 in these proceedings and imposed further conditions upon any further applications by the mother: GR v DRJ. A costs order was made against the mother.

64. On 1 July 2020, the mother sought to file another motion in these proceedings and, on 15 July 2020, Lindsay J refused leave: GR v Secretary, Department of Communities and Justice [2020] NSWSC 892.

65. In count 86 of the statement of charge, DCJ is said to have deliberately misled the Court since 28 July 2020 by suppressing all medical evidence despite court subpoenas and provided to have false medical information to the parents and this Court.

66. In the Children’s Court appeal, the mother sought the removal of the independent legal representative, for whom Ms Stoliar appears today. The application was heard by Sackar J on 6 and 10 November 2020, and the application dismissed on 16 November 2020: GR v The Department of Communities & Justice [2020] NSWSC 1622. On that occasion, his Honour concluded at [104]-[105]:

104   I have not been directed to any evidence that would establish that Ms Wooi and/or Mrs Stolier have failed in their duties or acted in a biased manner. The mere fact that they have not sided with GR or AB’s father but rather determined that the submissions made on behalf of the first and second defendants were appropriate and therefore supported them is not a logical basis for finding bias.

105   No complaint appears to have been raised by any judicial officer. Ms Wooi was commended by Judge Johnstone for acting in an “exemplary fashion”. Judge Johnstone also noted that the Court had been made well aware of AB’s fervent desire to go home. There is in my view simply no ground objectively to sustain any allegation that they have brought anything but an independent mind to bear in relation to these proceedings and therefore I would not order their removal.

67. The child remains under the parental responsibility of the Minister by final orders of the Children’s Court, subject to the Children’s Court appeal.

Progress of the contempt motion

68. The Registrar made directions to progress the contempt motion on 27 April 2020, 1 June 2020, 15 June 2020, 13 July 2020 and 14 August 2020, in particular:

1. for the mother to file an amended motion reflecting Kunc J’s dismissal of various paragraphs of the motion on 24 April 2020;

2. for the mother to serve each of the defendants named in the motion and, if necessary, obtain orders for substituted service; and

3. most importantly, to file affidavits in support of the contempt motion.

69. On 9 July 2020, the solicitors for DCJ advised the mother that, following her non-compliance with the directions made by the Court, an application would likely be brought to dismiss the proceedings for lack of progress.

70. On 13 July 2020, the Registrar informed the mother, “[Y]ou’re on notice … this is the final extended time and [DCJ’s counsel] has indicated that, if it's not done, he’s likely to try and get [these proceedings] dismissed because you haven’t got on with it, do you understand?”. The mother replied in the affirmative.

71. In August 2020 the mother sought a further extension of time, which the Registrar granted by consent but noted that, if the amended motion and affidavit in support were not filed by 7 September 2020, DCJ had advised that they may make an application to have the proceedings dismissed for lack of progress.

72. Ultimately, on 5 September 2020, the mother filed an amended motion – being the contempt motion in the form presently before the Court – adding seven further defendants, amending the existing 74 charges and adding a further 14 charges. These additions do not appear to have been envisaged by the directions to file an amended motion.

73. On 7 September 2020, the mother sent a copy of the amended motion to the solicitors for DCJ, advising, “I rely on the affidavit evidence previously served.” Unsurprisingly, that was not satisfactory given the apparently very large volume of material previously served by the mother in these proceedings. On 11 September 2020, DCJ’s solicitors advised the mother:

…Registrar Hedge explained to you at the directions hearing on 13 July 2020 that your evidence in these proceedings needed to be filed and served in these proceedings so there was no confusion about what evidence you were relying upon.

Presently, my client is not able to respond to the charges you are alleging because you have not identified the evidence you are relying upon in support of each charge. These are serious charges that you are alleging, and you are not required to identify what case my client is answering with sufficient detail so that my client is able to respond to the charges.

The affidavit evidence you have served in your other Supreme Court and Court of Appeal proceedings has been via numerous emails and is so large in volume that my client is unable [to] determine precisely what you are relying upon in relation to each charge based on your statement, “I rely on the affidavit evidence previously served.”

These proceedings have been adjourned on four occasions since 27 April 2020 to allow you time to comply with the directions.

The Crown Solicitor advised that, unless the mother served her evidence in support of each of the 88 charges before the next directions hearing, an application would be filed to have the proceedings dismissed for lack of progress, with costs.

74. No evidence was served by the mother before the next directions hearing on 14 September 2020, when the Registrar gave directions for any motion to dismiss the contempt motion to be filed and served by 28 September 2020. The dismissal motion was filed on that date, together with an affidavit in support.

75. Service of DCJ’s motion for summary dismissal on the mother proved difficult. Several affidavits of process servers are in evidence. Whilst the motion and affidavit in support was served by email on 28 September 2020 and delivered to the mother’s home on 1 October 2020, personal service was not effected until 17 November 2020 notwithstanding a large number of attempts to do so.

76. On 27 November 2020, Ward CJ in Eq made orders for the mother to file and serve any material in response to the dismissal motion by 11 December 2020 and listed the matter for hearing before me today.

77. A matter of some concern which was relied upon by DCJ today – and which was not the subject of Ward CJ in Eq’s judgment in GR v DCJ – is the communications which the mother has had in connection with the contempt motion with those working with and caring for her child. These communications are relied upon in support of DCJ’s submission that the contempt motion is brought for a collateral purpose, being to threaten or persuade people to do what the mother wishes in relation to access to her son, care of her son and return of her son to her.

78. There does seem to be evidentiary support for that submission. On 1 June 2020, the mother – when communicating with a caseworker – suggested that suppression of medical evidence while there were Supreme Court proceedings concerning her child was a criminal offence punishable by gaol sentence. A similar message was conveyed by the mother on 3 June 2020, 5 June 2020 and 6 June 2020. In the last of these communications, the mother sought an immediate reply to her request, failing which the caseworker would be charged criminally with suppression of medical evidence in a contempt of court. On 5 June 2020, DCJ’s solicitors asked that the mother not communicate with the caseworkers in this manner.

79. The mother was not dissuaded. On 8 July 2020, the mother sent a letter to the Minister requesting that “the disgraceful child abusing” caseworker be sacked and making a series of serious allegations suggesting that the caseworker would be added as a defendant to criminal charges in this Court. Unless an answer was given by close of business that day, suppression of medical evidence would be added “to criminal charges against your many incompetent, abusive, child abusing criminal staff”. Similar communications were conveyed by the mother to the caseworker on 16 July 2020, 23 July 2020, 24 July 2020 and 30 July 2020.

80. The dismissal motion was filed on 28 September 2020. The mother continued to communicate to caseworkers and others working with her son, suggesting that they would be prosecuted criminally, including on 1 October 2020 (“if you don’t give me immediate contact, then you will be back in court next week. You will be sued in court and go to prison for assault and battery and go to gaol for the rest of your life … You are ill-informed and uneducated. Go to hell you fucking bitch”), 20 October 2020, 27 October 2020 (“any further false, malicious, trashy, toxic and slanderous affidavits … will be prosecuted criminally”) and 28 October 2020 (suggesting that DCJ’s affidavits in support of the dismissal motion contained “malicious, defamatory, false and toxic statements” and were “toxic, excessively trashy, defamatory, abusive and deliberately false affidavits”).

81. On 4 November 2020, DCJ’s solicitors again requested that the mother cease communicating with the caseworkers in this manner, advising that her continued allegations and the intimidatory nature of her communications were making it difficult for the casework team to continue to engage with her.

82. Whilst there is no doubt that the mother’s emails were offensive and abusive, the question for me is whether these communications support a conclusion that the contempt motion is an abuse of the process of the Court. I will return to this shortly.

DISMISSAL FOR WANT OF PROSECUTION

83. Rule 12.7 provides that the Court may dismiss proceedings if a plaintiff does not prosecute the proceedings with due dispatch. As DCJ submitted, if a plaintiff does not prosecute the proceedings with due despatch, the court may order that the proceedings be dismissed or make such other order as the court thinks fit: Morris-Harris-Keith v Hughes [2019] NSWSC 665; Re Punters Show Pty Limited [2017] NSWSC 605; HSBC Bank Australia v Chang [2009] NSWSC 69. In Ritchie’s Uniform Civil Procedure NSW, the requirements of this rule are described at [12.7.5]:

The essential criterion for the exercise of the power is whether or not, in all the circumstances, justice requires that the proceedings should be dismissed or the defence struck out. That criterion commonly involves striking a balance between the plaintiff and the defendant: Witten v Lombard Australia Ltd [1968] 2 NSWR 529; (1968) 88 WN (Pt 1) (NSW) 405 at 411; Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (1986) 4 NSWLR 491; McKenna v McKenna [1984] VR 665; Stollznow v Calvert [1980] 2 NSWLR 749; Hartigan v International Krishna Consciousness Inc [1999] NSWSC 57.

84. DCJ submitted that delay is not confined to a lack of activity but extends to a delay arising out of a want of constructive activity: Ghosh v NineMSN Pty Ltd (2015) 90 NSWLR 595; [2015] NSWCA 334 at [41]. DCJ submitted that, in all the circumstances, justice required that the proceedings be dismissed as the mother had been afforded sufficient opportunity to file and serve evidence in support of her contempt motion and had not. As was observed by Judge Gibson in summarily dismissing defamation proceedings, as extracted by the Court of Appeal in Ghosh v NineMSN Pty Ltd at [34]:

Nor should it be the case that there are exemptions for persons who conduct their own litigation. Although flexibility should be shown to litigants in person, they are not immune from criticism where they indulge in conduct of the kind demonstrated here. Furthermore, the plaintiff is not a litigant who genuinely, but misguidedly, believes in the correctness of her conduct, but a tertiary-educated person, represented for the past nine months by lawyers with extensive experience in defamation. …

85. The Court of Appeal stated further, at [42] to [43]:

[42]   Importantly, the Civil Procedure Act now also adds the overriding purpose of that Act and the rules of court in facilitating “the just, quick and cheap resolution of the real issues in the proceedings” to the matters to be considered (s 56). As well, s 57 includes the “efficient use of available judicial and administrative resources” amongst the objects to which regard is to be had in managing court proceedings, s 59 requires delay to be eliminated so far as possible and s 60 requires the court to take into account the object of “resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute”.

[43]    These considerations are of fundamental importance in determining an application for the dismissal of proceedings for want of due despatch, as they are to all other aspects of the conduct of civil litigation in this State. The primary judge had appropriate regard to these provisions in arriving at her decision to dismiss the proceedings.

86. DCJ submitted that the mother had now been afforded eight months to file evidence in support of the contempt motion, and to serve the alleged contemnors; failure to do so was said to be an abuse of the court’s process. Further, it was said to be in the public interest to complete proceedings with due despatch. There should be “the just, quick and cheap resolution of the real issues in the proceedings”: section 56, Civil Procedure Act 2005 (NSW). The Civil Procedure Act requires the “efficient use of available judicial and administrative resources”, with delay to be eliminated so far as possible. Issues between the parties are to be resolved in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute. Additionally, the public interest was said to be advanced in expeditiously prosecuting contempt proceedings. DCJ submitted that this had not happened despite many second chances being afforded to the mother.

87. The mother submitted that there was no evidence of ongoing prejudice suffered by the defendants to warrant denying her the opportunity to press the contempt motion. It was said that 18 of the 19 defendants remained unrepresented despite repeated service. The mother also relied on Barrett J’s observation in James v Ash Electrical Services Pty Ltd [2009] NSWSC 30; (2009) 69 ACSR 596 at [17]:

In the circumstances I have described, I am not prepared to hold that Mr James has not proceeded with “due despatch” within the meaning of r 12.7(1). There has been attention by Mr James to preparations to pursue the proceedings which has been within reasonable bounds of diligence. The power referred to in r 12.7(1) is a discretionary power: see, for example, Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274. It is to be exercised according to the justice of the case, remembering that it is a drastic step to exclude from the court a plaintiff who has an arguable case; but also that a defendant can be prejudiced by delay.

88. The mother submitted that there has been no want of due dispatch as her affidavit had been filed in February 2020 (although, I note, not in respect of the contempt motion nor clearly identified as being relied upon for that purpose until more recently). It was submitted that the defendants had not filed any evidence in reply but simply wrongly alleged that no evidence had been filed by the plaintiff.

Consideration

89. The progress of the contempt motion from filing until today has obviously been most unsatisfactory. The mother has been directed on several occasions to file evidence in support of the statement of charge. The affidavit which has ultimately been served is wholly inadequate to sustain the statement of charges: see [10]-[16]. Having been given eight months to put on evidence in support of the motion, the fact that the evidence which has been served is defective tends to suggest that the mother cannot or will not prepare such evidence.

90. Notwithstanding the repeated failure to comply with the Registrar’s orders, I would not ordinarily be minded to dismiss the contempt motion pursuant to rule 12.7 if the motion was otherwise tenable, particularly if there was an explanation for the default and a reliable basis to conclude that the plaintiff’s egregious default would be, or could be, remedied. But this is not the only problem with the contempt motion. This brings me to the second basis of DCJ’s dismissal motion.

FRIVOLOUS AND VEXATIOUS PROCEEDINGS

91. Rule 13.4(1) provides:

Frivolous and vexatious proceedings

(1)   If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—

(a)   the proceedings are frivolous or vexatious, or

(b)   no reasonable cause of action is disclosed, or

(c)   the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim.

92. In Ritchie’s Uniform Civil Procedure NSW, it is stated in relation to Rule 13.4 at [14.28.10]:

It is clearly an abuse of process to use “Court proceedings... for the purpose of obtaining... some collateral advantage... and a party so using or threatening proceedings will be liable to be held guilty of abusing the process of the court and therefore disqualified from invoking the powers of the court by proceedings he has abused”: Re Majory [1955] Ch 600 at 623–4 per Evershed MR; Williams v Spautz (1992) 174 CLR 509; 107 ALR 635; BC9202694; Spautz v Williams [1983] 2 NSWLR 506 at 539; Flower & Hart (a firm) v White Industries (Qld) Pty Ltd (1999) 87 FCR 134; 163 ALR 744; [1999] FCA 773; BC9903036; see also Castro v Murray (1875) LR 10 Ex 213; Dawkins v Prince Edward (1886) 11 P 59 at 63; King v Henderson (1897) 3 ALR (CN) 12; 13 WN (NSW) 137; Re Septimus Parsonage and Co [1901] 2 Ch 424; Bayne v Baillieu (1908) 6 CLR 382; 14 ALR 426; Dowling v Colonial Mutual Life Assurance Society Ltd (1915) 20 CLR 509; 21 ALR 425; [1915] HCA 56; Goldsmith v Sperrings Ltd [1977] 2 All ER 566; [1977] 1 WLR 478; Varawa v Howard Smith & Co Ltd (1911) 13 CLR 35 at 91. But proceedings may constitute an abuse of process if they are being prosecuted for any improper purpose, irrespective of whether or not that purpose is “collateral” in the ordinary sense of that term. The essential question for determination is whether or not the proceedings, or the particular claims made in them, are genuinely intended to be determined in the proceedings: Flower & Hart (a firm) v White Industries (Qld) Pty Ltd, above. According to this criterion, proceedings may be categorised as having an improper purpose, even if the moving party has a prima facie case, or must be assumed to have such a case: Grovit v Doctor [1997] 2 All ER 417; [1997] 1 WLR 640 (commencement and continuation of proceedings with no intention of bringing them to a conclusion is an abuse of process irrespective of whether the defendant has been prejudiced by the delay); Berger v Raymond Sun Ltd [1984] 1 WLR 625 (unduly prolonging a trial); Westpac Banking Corp v Northern Metals Pty Ltd (1989) 14 IPR 499; (1989) ATPR ¶40-953 (alternative claim struck out as embarrassing where its only purpose was to obtain wider discovery).

93. In Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 537, Brennan J, in his separate judgment, said in relation to proceedings brought for a collateral purpose (footnotes omitted):

[11]   The gravamen of the test, I apprehend, is that the plaintiff did not commence or maintain the proceeding for any substantial legitimate purpose. I would state the test in that way. Substantiality is a matter of degree, ascertained by reference to the intention attributed to the plaintiff in all the circumstances of the case. At the end of the day, the court must determine, by reference to the intention attributed to the plaintiff, not merely whether the collateral purpose of the proceeding outweighs any legitimate purpose but whether the plaintiff entertained any substantial intention that the proceeding should achieve a legitimate purpose.

[12]    For these reasons, I would hold that an abuse of process occurs when the only substantial intention of a plaintiff is to obtain an advantage or other benefit, to impose a burden or to create a situation that is not reasonably related to a verdict that might be returned or an order that might be made in the proceeding.

94. As DCJ submitted, in GR v DCJ, Ward CJ in Eq discussed the authorities in relation to abuse of process at [197]-[226]. At [203], her Honour stated:

Recently, in Rinehart v Rinehart [2020] NSWSC 68 (Rinehart), albeit in a very different context, I considered the principles applicable where it is said that the commencement or continuation of proceedings is an abuse of process. I there noted (see at [583] and [617]) that the onus of satisfying the Court that there is an abuse of process is “a heavy one” and lies upon the party alleging it (citing Williams v Spautz (1992) 174 CLR 509 at 529; [1992] HCA 34 (Williams v Spautz) per Mason CJ, Dawson, Toohey and McHugh JJ); and that the fact that “the same transactions and events are the subject of two separate proceedings in different forums … does not lead inexorably to the conclusion that there is an abuse” (citing Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48 (Michael Wilson v Nicholls) at [110] per Gummow ACJ, Hayne, Crennan and Bell JJ).

95. Further Ward CJ in Eq observed at [206]-[207]:

[206]   In Rinehart, I noted that proceedings have been held to be an abuse of process where: the Court’s processes are invoked for an illegitimate or improper purpose (referring to Williams v Spautz; Rogers v The Queen (1994) 181 CLR 251 at 287; [1994] HCA 42 per McHugh J); the use of the Court’s processes is unjustifiably oppressive to one of the parties or vexatious (referring to Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55); and the use of the Court’s processes in the manner contemplated would bring the administration of justice into disrepute (see Walton v Gardiner (1993) 177 CLR 378 at 393; [1993] HCA 77 per Mason CJ, Deane and Dawson JJ).

[207]    I also noted that the categories of abuse of process are not closed (referring to Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 at 518-520; [2015] HCA 28 per French CJ, Bell, Gageler and Keane JJ; Perera v GetSwift Ltd (2018) 263 FCR 92; [2018] FCAFC 202 at [144]; Michael Wilson v Nicholls at [89] per Gummow ACJ, Hayne, Crennan and Bell JJ) and that it has been recognised that the doctrine of abuse of process is fluid and adaptable (referring to Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 (Batistatos) at [9] per Gleeson CJ, Gummow, Hayne and Crennan JJ; Jeffery and Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75; [2009] HCA 43 at [70] per Heydon J).

96. Additionally, Ward CJ in Eq referred to the general desirability of the timely completion of litigation. At [220]-[223]:

[220]   In UBS AG v Tyne [2018] HCA 45; (2018) 92 ALJR 968; 360 ALR 184 (UBS AG v Tyne), Kiefel CJ, Bell and Keane JJ (with whom Gageler J agreed) said (at [1]) that:

1. … The varied circumstances in which the use of the court’s processes will amount to an abuse, notwithstanding that the use is consistent with the literal application of its rules, do not lend themselves to exhaustive statement. Either of two conditions enlivens the power: where the use of the court’s procedures occasions unjustifiable oppression to a party, or where the use serves to bring the administration of justice into disrepute…

[Footnotes omitted]

[221]   Their Honours noted (at [38]) that the “timely, cost effective and efficient conduct of modern civil litigation takes into account wider public interests than those of the parties to the dispute” (citing Batistatos at [14] per Gleeson CJ, Gummow, Hayne and Crennan JJ; and Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at [95] per Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[222]   To underscore the preceding, in general, it is contrary to the public interest in the administration of justice for there to be permitted the risk of inconsistent decisions on the same issues; and there would be oppression at the continuation of proceedings with the risk of conflicting judgments if the same or similar issues will arise for determination in each. It is relevant in this context to note Gordon J’s observations (albeit in dissent as to the result) in UBS AG v Tyne that (at [151]):

151. The administration of justice may be brought into disrepute, in such a way as to amount to abuse of process, if the public perception is that the legal system is unfair, inefficient, ineffective, expensive (both for the parties and in terms of the use of public monies) or contrary to the rule of law. Permitting a proceeding to continue in such circumstances might suggest tolerance of behaviour that is contrary to the just, efficient and timely resolution of disputes including attempts to relitigate questions already resolved.

[Footnotes omitted]

[223]    Following on from this, her Honour referred (at [155]) to considerations of finality, fairness and maintenance of public confidence in the administration of justice. Gageler J, agreeing with the majority, also emphasised (at [80]) the public interest in the timely and efficient administration of civil justice. For their part, the plurality (at [58]) spoke of oppression in the significant delay in the resolution of the disputes and the inevitability of increased costs.

97. The problem being considered by the Chief Judge in that case is somewhat different to the one at hand. Her Honour was considering the large number of applications made by the mother to the Duty Judge. The question for me is somewhat different, being whether the contempt motion, when viewed against the litigation history set out in DCJ’s evidence, indicates that the contempt motion meets the description in rule 13.4.

98. DCJ submitted that the contempt motion is an abuse of the process of the court as the plaintiff does not entertain any substantial intention that the motion should achieve a legitimate purpose, as was said to be evident from the absence of any factual basis for alleging contempt; the plaintiff’s failure to prosecute the matter expeditiously or with due despatch; and the communications with the child’s casework team, in which she has repeatedly referenced the contempt motion when making requests for information from the child’s casework team. In particular:

1. On 16 July 2020, the plaintiff emailed Ms Walters, “[p]lease answer the questions put to you repeatedly since April, or you will face criminal charges for suppression of medical evidence…”;

2. On 8 July 2020, the plaintiff emailed Ms Fowler, "You will definitely be charged criminally next week, I will serve you your papers…";

3. On 23 July 2020, the plaintiff emailed Ms Walters, "[p]lease reply immediately, or the Minister and all his staff including you will be charged criminally with assault and battery and contempt of court…";

4. On 24 July 2020, the plaintiff emailed Ms Walters, "[p]lease email me the medical update by 9am, or you will be added as a defendant to contempt of court charges next week..."; and

5. On 27 October 2020, the plaintiff emailed Ms Walters, Ms Fowler, Ms Eldridge and Ms Carroll, "You are put on notice that any further false, malicious, trashy, toxic and slanderous affidavits, in particular from Miss Eldridge, will be prosecuted criminally…".

99. Thus, DCJ submitted that the contempt motion was being pursued for a collateral purpose: the plaintiff has continued the proceedings for the purpose of threatening those who have been involved in the care of her son, either to return the child to her care or to provide information sought. The contempt motion was effectively being held over the head of those working with the child to try and have them accede to the mother’s requests.

100. DCJ relied on the deficiencies in the mother’s affidavit to which I referred at [10]-[16]. Further, DCJ submitted that the mother’s affidavit misstated or was selective in referencing the evidence heard in the Children’s Court proceedings and made assertions contrary to the factual findings of that court. To this, the mother submitted that DCJ sought to rely on portions of the Children’s Court judgment in defence of the contempt charges; the appropriate forum to do so was at a substantive hearing of the contempt motion itself. That may be so, but – as matters presently stand – the findings of Judge Johnstone are presumably correct and bind the plaintiff until disturbed on appeal (which I note is on foot). The mother’s affidavit proffers a description of events which has not been accepted but is persisted in nonetheless. This is suggestive of an abuse of process.

101. The mother submitted that she was not without a reasonable cause of action; the contempt charges were not frivolous or vexatious but relied upon the defendants’ deliberate breaches of all Court orders and deliberately misleading the Court over a prolonged period of time. The defendants were said to have caused the child serious harm by breaching all Court orders made to protect him. Accordingly, it is submitted that the plaintiff has a good, competent and arguable claim for contempt which ought to be determined and not summarily dismissed. There was said to be a strong issue of principle and such a cause of action should not be extinguished without a hearing on the merits of the claim. It would create a substantial injustice to the plaintiff. As identified in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at [23] (French CJ) and [98] (Gummow, Hayne, Crennan, Kiefel and Bell JJ) and Halpin v Lumley General Insurance Ltd (2009) 78 NSWLR 265; [2009] NSWCA 372 at [94]-[95] (Sackville AJA, Tobias and Basten JJA agreeing), the Court ought to do what is just for both parties. In circumstances where a valid and arguable cause of action existed, it was not just to the plaintiff to deprive her of the opportunity to continue to press her claim. This is said to be particularly so when there was serious default on the part of the defendants over the course of the litigation, and their allegations that there was no affidavit to support the contempt charges were said to be deliberately false.

102. The mother submitted that the defendants had deliberately misled the Children’s Court, this Court and Court of Appeal over two years by falsely portraying that her child’s refusal to eat in the care of DCJ, or to eat hospital food, was an “eating disorder” requiring an induced comas as well as chemical, mechanical and physical restraints and incarceration in mental wards without any mental illness. The defendants, it was submitted, had repeatedly breached the Court’s orders to protect the child, had caused severe injuries to the child causing him to acquire spastic cerebral palsy from the continuous assault and battery by extreme unnecessary medical treatments over that time. This was said to present a very serious issue to be tried by a judge familiar with the two year history of the case and ought not be summarily dismissed.

103. The mother also submitted that the dismissal motion was incompetent as DCJ’s counsel appeared for only some of the defendants, all of whom were said to have been served. As to this, I note that there is an identity of parties to the contempt motion and the dismissal motion, that is, applicants and respondents. As noted at [8], to the extent that the defendants to the statement of charge go beyond the respondents to the contempt motion then, as I understand the prayers for relief sought in the contempt motion, DCJ is said be liable for the contempt of such additional defendants as DCJ’s “servants and agents”. Thus, DCJ has standing to seek dismissal of the contempt motion, including insofar as the statement of charges refers to defendants for which it is said to be liable.

104. The mother submitted that the dismissal motion itself was an abuse of process and a further contempt of court. DCJ’s counsel was said to have misled the Court at each of the directions hearings before the Registrar in respect of the contempt motion by saying that no affidavit had been served in support of the contempt motion when in fact the mother’s affidavit of 24 February 2020 had been filed. (This allegation appears to be without a proper basis as, while the affidavit had been filed, it does not appear to have been identified by the mother as being relied upon in support of the contempt motion until some time later).

105. The mother submitted that abuse of process did not apply to contempt charges. The judgment of the Children’s Court was said to be irrelevant. There was said to be a very serious issue to be tried given DCJ’s conduct and the contempt motion ought not be summarily dismissed.

Consideration

106. There is no doubt that the allegations made by the mother in the contempt motion are serious indeed. The question is whether, given the evidence relied upon by the parties in respect of the dismissal motion, the contempt motion should be allowed to proceed to final hearing or whether it meets the description in rule 13.4 of the Uniform Civil Procedure Rules.

107. There are a number of significant problems with the contempt motion, emerging from the evidence and the motion itself. First, as already canvassed at [81], the contempt motion has not been prosecuted with dispatch.

108. Second, the statement of charge is problematic. As DCJ submitted, the purpose of a statement of charge is to provide the person concerned with due notice, and a proper opportunity to answer the charge: Coward v Stapleton [1953] HCA 48; (1953) 90 CLR 573 at 579-80; Inghams Enterprises Pty Ltd v Timania Pty Ltd [2005] FCAFC 155; (2005) 221 ALR 823 at [32]; Supreme Court Rules, Rule 55.3. To this should be added the judgment of Tobias JA, with whom Campbell JA agreed, in Matthews v Australian Securities and Investments Commission [2009] NSWCA 155 at [40]-[47].

109. The statement of charge is framed in strong language. It is not always easy to comprehend precisely what is alleged or why it is said to be a contempt of court. The real problem with the statement of charge is that the mother contends that essentially everything that DCJ has done in relation to the child since it first intervened into the child’s care – including practically every step taken in this Court – is a contempt of court. The wholesale nature of the statement of charge is indicative of the contempt motion being an abuse of process.

110. Third, the affidavit in support is deficient and defective: see [10]-[16]. As DCJ submitted, the essentially punitive nature of contempt proceedings will usually require careful observance of the ordinary evidentiary and procedural rules unless the respondent agrees to waive the strict rules of evidence: Spindler v Balog (1959) 76 WN (NSW) 391; McLeod v Henty (1900) 25 VLR 648; Taylor v Whelan [1962] VR 306; Maslen v Official Receiver [1947] HCA 30; (1947) 74 CLR 602. Contempt – even civil contempt – must be proved beyond reasonable doubt, as recently explained by Adams J in Bellerive Homes Pty Ltd v FW Projects Pty Ltd [2019] NSWSC 193 at [38]; Commonwealth Bank of Australia v Salvato (No 4) [2013] NSWSC 321 at [126]-[130] per Garling J.

111. As matters presently stand, the mother’s evidence is wholly inadequate to establish the statement of charge. There is no evidence or submission by the mother that the state of the evidence in support of the contempt motion will be promptly fixed, nor that the mother considers that there is any problem to fix.

112. Fourth, and more significantly, having reviewed the history of these proceedings and the Children’s Court proceedings, as set out in the evidence and summarised by Ward CJ in Eq in GR v DCJ, it is apparent that the contempt motion seeks to re-agitate the entire history of events that have happened with the care of the child since he first came to the notice of DCJ on 28 June 2018. Those matters have, and are, presently the subject of a judgment of the President of the Children’s Court, now on appeal to this Court. As Ward CJ in Eq observed, by the contempt motion, the mother is seeking, on an interlocutory basis, final relief of the kind that would be sought on an appeal from the Children’s Court: at [83].

106. I note, in particular, that the contempt motion was filed the same day that the Children’s Court made its final orders. The subject matter of many of the charges of contempt in the early period – that is, pre‑dating the mother’s affidavit of 24 February 2020 – has already been considered by the President of the Children’s Court and findings made. By the contempt motion, the mother effectively seeks to cavil with those findings in circumstances where, as matters presently stand, those findings are presumed to be correct unless and until those findings and conclusions are disturbed when Sackar J determines the Children’s Court appeal. To seek to agitate, by the contempt motion, matters which are already the subject of the Children’s Court judgment and the Children’s Court appeal amounts to an abuse of process.

107. Much of the balance of the charges of contempt deals with matters which are the subject of a large number of judgments of this Court. By the contempt motion, the mother is seeking to re-agitate the matters the subject of those judgments and to re-visit practically every hearing in these proceedings. This appears to me to be classically an abuse of process case.

108. The contempt motion is simply another vehicle to pursue the mother’s allegations concerning her son in the face of orders of this Court limiting her ability to make further applications.

109. There is a stark contrast between the mother’s willingness to threaten DCJ’s staff with punishment for contempt, on the one hand, with a refusal or inability to support the contempt motion by evidence, either in accordance with the directions made by the Registrar, or at all. This is consistent with the mother seeking to use the contempt motion to attempt to coerce DCJ’s staff to accede to her wishes and consistent with the contempt motion being used for a collateral purpose. However, I do not think that is why the mother filed the contempt motion although, certainly, the mother has used the fact that a contempt motion is on foot to threaten DCJ’s staff from time to time. In parallel, the mother has largely refused to prosecute the contempt motion in a timely manner. This is confirmed by the attributes of the affidavit of 24 February 2020, which indicates the sort of material which the mother will seek to advance at any hearing of the contempt motion. That material cannot be said to be evidence at all, and certainly not evidence which supports the statement of charges.

110. Having regard to these features of the contempt motion, in particular, the history of these and related proceedings, and having regard to the principles summarised by the Chief Judge, I am satisfied that the orders sought by the DCJ should be made today under rule 13.4(1) of the Uniform Civil Procedure Rules.

111. DCJ also seeks an order for costs, and I note the observations of Ward CJ in Eq in GR v DCJ at [228]:

However, GR has been cautioned more than once as to conduct of the kind in which she has here engaged being or likely to be seen to be an abuse of process. In those circumstances, where she has continued to engage in such conduct it is appropriate that she bear the first and second respondents’ costs of the present applications. Indeed, there may well have been a case for costs to have been payable on the indemnity basis but this was not sought and GR has not had the opportunity to be heard on such a costs order.

119. I consider that these observations apply equally to the situation at hand. DCJ has succeeded on the dismissal motion and costs should follow the event.

Orders

120. For these reasons, I make the following orders.

1. Pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW), dismiss the plaintiff’s Amended Notice of Motion filed on 7 September 2020.

2. Order the plaintiff to pay the defendants’ costs of the motion.

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Decision last updated: 08 February 2021