GR v Public Guardian - [2024] NSWSC 205

Supreme Court

New South Wales

Medium Neutral Citation: GR v Public Guardian [2024] NSWSC 205
Hearing dates: 29 February 2024
Date of orders: 29 February 2024
Decision date: 29 February 2024
Jurisdiction: Equity
Before: Kunc J
Decision:
Proceedings dismissed

Catchwords:
CIVIL PROCEDURE — Pleadings — Amendment — Current pleading rendered otiose by events — Where foreshadowed amendment involved plaintiff suing in different capacity on completely different causes of action — Application for timetable to bring amendment application refused — Proceedings summarily dismissed

Legislation Cited:
Civil Procedure Act 2005 (NSW) s 65(2)(c)
Limitation Act 1969 (NSW)
Uniform Civil Procedure Rules 2005 (NSW) Pt 13, r 13.1 and Pt 14, r 14.28

Cases Cited:
GR v Secretary, Department of Communities and Justice; GR v Public Guardian [2023] NSWSC 525
GR v Secretary, Department of Communities and Justice [2023] NSWCA 239
Re AB [2019] NSWSC 316

Category: Procedural rulings
Parties: GR (Plaintiff)
Public Guardian (First Defendant)
NSW Trustee & Guardian (Second Defendant)
Department of Communities & Justice (Third Defendant)
Westmead Childrens Hospital (Fourth defendant)
Impact Youth Services Pty Ltd (Fifth defendant)
Representation:
Plaintiff (self-represented)

Solicitors:

Crown Solicitor for NSW (First, Second, Third and Fourth Defendants)
P Mathers (AB)

File Number(s): 2023/00055012

EX TEMPORE JUDGMENT (REVISED)

INTRODUCTION

The Court had before it today, for directions, three sets of proceedings involving GR. GR is the mother of AB. Because in what follows I will be referring to other proceedings in which those persons' names were required to be anonymised, I will direct that in these proceedings the plaintiff be referred to as GR and her son as AB.
This judgment concerns only one of those proceedings, being proceedings commenced by GR in the Common Law Division by statement of claim filed 17 February 2023. Today GR appeared for herself. Mr A Nicholas, solicitor, appeared for the first to fourth defendants, being the Public Guardian, NSW Trustee and Guardian, the Department of Communities and Justice and Westmead Children's Hospital. The fifth defendant has never taken any part in these proceedings. Mr P Mathers appeared for AB.

PROCEDURAL HISTORY

These proceedings have been, for case management purposes, connected with Equity Division proceedings which were, in effect, an Appeal by GR against decisions made in the New South Wales Civil and Administrative Tribunal (NCAT), concerning guardianship and financial management orders about AB.
The first point of procedural importance is that because of the factual developments set out in [8] to [10] below, GR has accepted that the Appeal should be dismissed. I have made that order in the Appeal, together with directions for the exchange of submissions about the costs of the Appeal.
The second procedural point is that the connection between the Appeal and these proceedings is also important to explain how the matters came before me today. In a judgment delivered in May 2023 (GR v Secretary Department of Communities and Justice; GR v Public Guardian [2023] NSWSC 525), the Chief Judge in Equity dismissed both the Appeal and these proceedings.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NSWSC 205
Decision Date: 29 February 2024

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, GR sought to amend their pleadings in a case against the Public Guardian. The plaintiff originally commenced proceedings seeking damages for personal injury and negligence. The plaintiff then sought to amend their pleadings to sue in a different capacity, based on different causes of action, including claims of breach of statutory duty, misfeasance in public office, and false imprisonment. The plaintiff's proposed amendment involved suing in a different capacity and on completely different causes of action, which rendered the current pleading otiose. The court found that the proposed amendment was not merely an amendment but a complete change of the cause of action and that the current pleading was rendered otiose by the events. The court refused the application for a timetable to bring the amendment application and dismissed the proceedings summarily.

The court held that the plaintiff's proposed amendment involved a different capacity and different causes of action, which rendered the current pleading otiose. The court found that the plaintiff had not shown any exceptional circumstances that warranted an extension of time to bring the amendment application. The court held that the proposed amendment was not merely an amendment but a complete change of the cause of action and that the current pleading was rendered otiose by the events. The court found that the plaintiff's application for a timetable to bring the amendment application was an abuse of process and dismissed the proceedings summarily. The court held that the plaintiff had not shown any reasonable prospects of success and that the proceedings were an abuse of the court's process.

Orders