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

1. 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.

2. 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

3. 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.

4. 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.

5. 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. The initiating process for that order in these proceedings was a notice of motion filed on 4 April 2023 by the Public Guardian relying on both Uniform Civil Procedure Rules 2005 (NSW) (UCPR) Pt 13 r 13.4 and Pt 14 r 14.28.

6. His Honour's decision was overturned by the Court of Appeal in October 2023: GR v Secretary of the Department of Communities and Justice [2023] NSWCA 239 (GR 2023). However, the Court of Appeal considered that Hammerschlag CJ in Eq had only dealt with the strike out motion in each set of proceedings insofar as it relied on UCPR Pt 13 r 13.4. The relevant outcome of the Court of Appeal’s decision was the remitter of the balance of the notices of motion to the Equity Division to be allocated to a single judge for case management. Therefore, in these proceedings it was the Public Guardian's application that these proceedings be struck out pursuant to UCPR Pt 14 r 14.28 that was remitted.

7. These proceedings, and the other two proceedings involving GR to which I referred in [1] above, were assigned to me for case management. It is in that capacity that I have stood over the motion, on more than one occasion, because of continuing developments concerning AB in NCAT. Those developments have now reached a conclusive point which has precipitated the circumstances giving rise to this judgment.

DEVELOPMENTS IN NCAT

8. It is next necessary to say something about the most recent developments in NCAT. In short, the guardianship and financial management orders that had been made in relation to AB have now ceased to have any effect. It is unnecessary for the purposes of these reasons to recite the legally precise means by which that has occurred.

9. Proceedings concerning AB have a very long and complicated history in this Court. My own involvement began in March 2019: Re AB [2019] NSWSC 316. I am but one of a number of judges who has considered multiple applications brought by GR in relation to AB over the last five years. More details of the history of such proceedings may be found in GR 2023 and, for example, an earlier judgment of the Court of Appeal in GR v Secretary, Department of Families, Disabilities and Community Services (No 2) [2020] NSWCA 198.

10. The critical circumstances which now pertain are that AB has turned 18 and the orders made by NCAT to which he was subject have come to an end. AB is now an autonomous adult. He has, if I may use an antique expression, been fully emancipated and is now the master of his own fortune and future. That is something to which I have no doubt he has long aspired. The Court can only wish him well.

11. Because he was a party in the other proceedings before me, AB was present today at the bar table. He was ably assisted by his solicitor, Mr P Mathers. At my invitation, and with Mr Mathers’ encouragement, AB briefly addressed the Court.

12. It is important to note that AB was not a party to these proceedings. Nevertheless, his newfound independence has had a fundamental impact on them.

TODAY'S APPLICATION

13. Turning to the statement of claim, I immediately record that, entirely properly in my respectful view, GR expressly accepted that the statement of claim in its current form cannot proceed. She has therefore made an application for a timetable to be ordered to deal with a foreshadowed application by her for leave to amend the statement of claim.

14. In case the matter goes further, I make clear that it is GR's application for that timetable and its consequences which are the subject of these reasons. I indicated to GR that if I was not prepared to direct such a timetable, I also wished to hear from her as to why, in that situation, the Court should not dismiss the present proceedings. I plainly articulated that such a potential dismissal would not prejudice GR bringing fresh proceedings in relation to the subject matter of her foreshadowed amendment.

15. I also record that I am not engaged today in a hearing of the motion. The application which Mr Nicholas made in relation to the motion was that if I did not dismiss the proceedings for other reasons today, then I should make timetabling directions to enable the motion to be heard on a date to be fixed.

16. In the course of her submissions, GR first indicated to the Court that she wished to bring an action for damages (without any disrespect intended, on a presently unidentified legal basis and in an unspecified amount) on her own behalf and on behalf of AB. Given AB's independent status, and what has recently occurred in NCAT, there is no apparent basis on which GR would be entitled to bring any action on behalf of AB for damages. No one presently suggests that AB is a person who would be in need of a tutor if he wished to bring proceedings for damages in relation to whatever may or may not have happened to him over the last several years during his minority.

17. This means that insofar as GR contemplates bringing proceedings for damages, they must be her own damages, whatever they may be and howsoever arising. Beyond saying they are not obvious, I have no view as to whether or not she has any entitlement on any bases to claim damages in her own right by reason of whatever has happened to her in the context of steps she has taken concerning AB during his minority.

18. I took the opportunity, given AB and Mr Mathers' presence in relation to other matters today, to enquire of AB, through Mr Mathers, what AB's attitude might be to joining with his mother in any new damages proceedings. This was because I was of the view that an answer to that question could be relevant to the exercise of the Court's discretion in relation to GR's application. I emphasised to Mr Mathers that the Court was not putting any pressure on AB to answer that question and that AB was perfectly entitled not to answer unless he wished to do so.

19. I briefly adjourned the hearing so that Mr Mathers could advise AB and seek AB's instructions. Those instructions were to the effect that AB needed time to consider his position and to take advice. However, the strong likelihood was that if AB were to commence proceedings, he would do so in his own right without any connection to whatever his mother, GR, might want to do.

20. GR pressed for the timetable in respect of an amendment application but, in the alternative, submitted that if the Court were to dismiss the proceedings, then an order should be made that she not be required to pay any filing fees in relation to any new proceedings which she brings. She informed the Court that her sole source of income is a Centrelink pension.

21. Mr Nicholas submitted that the Court should not order a timetable for a leave application because what GR had foreshadowed was, in effect, a completely different case based on different facts to those pleaded in the statement of claim. I understood this to be a submission that the Court could now determine that leave would not be granted, such that a timetable for any such application would be futile. He submitted that there was nothing in the statement of claim which averred that GR had suffered damages on any legal basis by reason of the matters currently pleaded. What was currently pleaded were facts that were all about AB and what had allegedly been done to AB.

22. Mr Nicholas' characterisation of the statement of claim is plainly correct. The entire pleading, assuming for the sake of argument that any recognised cause of action might be identified in it, appears to be directed to a claim for damages on behalf of AB arising from things that were alleged to have been done to or in respect of AB by the defendants. The statement of claim discloses no factual or legal nexus to a right to damages asserted by GR in her own interest.

23. The relief claimed in the statement of claim is:

1   Impugn the legal and financial guardianship orders of 20 July 2022

2   A perpetual injunction against the first to fifth defendants restraining them from any further or new actions against the plaintiff or her son AB

3   A recovery order for AB to his mother, GR

4   General damages for physical and psychiatric injury and theft of Centrelink and NDIS payments, personal savings and property, and wages for forced free labour

5   Special damages

6   Aggravated damages for mental anguish.

7   Exemplary damages for contumelious conduct

8   Urgent injunctive relief

24. As to the first prayer, GR accepted that it was now otiose by reason of what has occurred in NCAT (see [8] to [10] above).

25. As to the second prayer, Mr Nicholas submitted that he was not aware of any basis on which any of those for whom he appeared, or indeed the fifth defendant, would have any reason to have further engagement with AB or GR. As a matter of common sense, that is correct. The engagement of the relevant government agencies was premised entirely upon AB being a minor who needed the assistance of the State, either through existing statutory mechanisms or through the parens patriae jurisdiction of this Court. In any event, I cannot see how the Court would ever have made an order in terms of prayer 2.

26. Prayer 3 has also been rendered otiose by the recent events in NCAT.

27. Prayers 4 to 7 can only relate, as the proceedings are currently pleaded, to damages that it is alleged were suffered by AB.

28. For the following reasons, I propose to refuse GR's application for a timetable to bring in an amended pleading and, of the Court's own motion, will dismiss the statement of claim. I do so in exercise of the Court's inherent jurisdiction to control its processes, its jurisdiction under UCPR Pt 2 r 2.1 to make directions and orders "for the conduct of any proceedings", and to move of its own motion under UCPR Pt 14 r 14.28.

29. I accept Mr Nicholas' submission that a timetable for an amendment application should not be ordered because the application would not be allowed. The reason for this conclusion is that what GR wishes to do is to bring in her own right a completely different proceeding based on a quite different cause or causes of action (whatever they may be) to recover damages to which she alleges she herself is entitled to arising from whatever she will allege was done over a period of years to AB. In other words, even at this stage - and without seeing the proposed amendment in terms - the Court is satisfied that the amendment is of such a radical nature that the Court would require fresh proceedings to be commenced rather than permitting an amendment. This is because what GR proposes is not an amendment but a complete replacement. The history of these proceedings, and GR's litigation in relation to and purportedly on behalf of AB (see [9] above), requires that the Court exercise its discretion for a line be drawn under them.

30. While I was in the course of delivering these reasons, GR raised a concern about the statute of limitations that might apply if I dismissed the proceedings rather than allowing her to embark on an amendment application. She submitted this was because some of the conduct in relation to AB about which she wishes to complain occurred in 2018. GR suggested that I should substitute AB in these proceedings to avoid any potential action by either of them being met with a limitation defence.

31. There are four points to be made in not accepting this submission.

32. First, there is no basis, and certainly no application has been made by AB, for me to substitute him as a plaintiff in these proceedings. In the light of the indication given on his behalf by Mr Mathers, I proceed on the basis that AB would not even wish me to do so at this stage, given his entirely understandable desire to consider his own position and the prospect that if he were to commence proceedings, he wishes to do so in his own right and quite apart from whatever his mother may wish to do.

33. Second, to the extent AB has any cause of action upon which he may wish to sue then, depending on the nature of the cause of action, his history of being a person under a legal disability and subject to the protective jurisdiction of the Court mean both the application of the suspension and extension provisions of the Limitation Act 1969 (NSW) may be available to him. That is something on which he can take advice.

34. Third, given what is presently pleaded when compared with what I understand is the type of action GR now says she wishes to plead, I do not consider that it is seriously arguable that any amendment which might be time barred would be likely to be permitted as arising "from the same (or substantially the same)" facts as those currently pleaded (to the extent the current pleading discloses any causes of action at all): s 65(2)(c), Civil Procedure Act 2005 (NSW) (CPA).

35. Fourth, given the history of this matter and GR's litigation concerning AB generally, in the exercise of my discretion, even if the dismissal of these proceedings exposed GR to a limitation defence in any new proceedings, I would still not permit her present application for a timetable, and the prospect of the continuation of these proceedings, for two reasons. First, GR is unable to identify even in the most general terms what her cause or causes of action might be, in circumstances where it is clearly difficult for the Court to conceive what they may be. Second, any limitation period will only apply to conduct at the start of AB's engagement with the State. It is clear from GR's numerous applications to the Court since early 2019 until this year, making many allegations in relation to AB's care over that period, that the operation of any limitation period will only be of minor prejudice (if any), assuming GR commences any new proceedings with reasonable diligence.

36. In addition to the reason identified in [29] above, a further reason why the Court will not grant a timetable for a leave application is that for leave even to be contemplated, close attention would have to be given by GR to both the specific facts that she would have to plead to make out any cause of action known to law, and to identify exactly what that cause of action might be. As part of that exercise, there would also have to be serious consideration given, once those matters are identified (if they can be), as to whether this Court or the District Court is the appropriate venue for such proceedings. This would turn upon the quantum of any claim that GR ultimately wishes to bring. The prospect of properly maintainable proceedings being commenced in this Court is, on my present view, too remote to set foot down the path to amending the current pleadings.

37. Insofar as GR has raised the question of filing fees, I do not propose to make any order or direction in relation to the filing fees that may be incurred if she does wish to commence fresh proceedings. Obviously enough, if the proper venue for those proceedings is the District Court, then I cannot say anything about what should happen there. However, even in this Court, the question of remission or waiver of fees is a matter dealt with in the Registry on the basis of proper cause being shown to those who decide whether or not some concession should be afforded to a litigant in relation to filing fees. It would be quite inappropriate for me to enter into that question, not least when it may be completely hypothetical as to whether or not proceedings will ever be commenced by GR in relation to the matters to which she has referred in the course of argument this morning.

CONCLUSION

38. In short, and by way of conclusion, the importance of maintaining the integrity of the processes of the Court and the overriding purpose identified in CPA ss 56 to 60 dictate that the time has come, as I have already said, for a clear line to be drawn under these proceedings. Whatever GR chooses to do in the future will be, as a matter of law and in large part as a matter of fact, directed to quite different matters to those which she has sought to raise in the statement of claim.

39. Therefore, for the reasons set out above, the Court will not make directions for a timetable for an application for leave to amend the statement of claim. GR has properly recognised that the statement of claim can no longer be maintained given what has now occurred in relation to AB. The proceedings will therefore be summarily dismissed.

40. The point which has been reached also, in my respectful opinion, demonstrates that, on any view, the causes of action which GR sought to advance in the statement of claim were never properly maintainable. It is just that the facts on the ground have now changed sufficiently, such that a formal determination by the Court of that question is no longer required. It follows that the motion has itself now been overtaken by events, including the dismissal of the proceedings today.

41. The orders of the Court are:

1. Direct that the plaintiff be referred to by the pseudonym GR and her son as AB.

2. The proceedings are dismissed.

3. For the avoidance of doubt, the extant balance of the first defendant's notice of motion filed 4 April 2023 (including prayer 2) is dismissed.

4. The first to fourth defendants are to serve and file by email to the associate to Kunc J an outline of submissions and any evidence in support of an application for their costs of these proceedings on or before 14 March 2024.

5. The plaintiff is to serve and file by email to the associate to Kunc J an outline of submissions together with any evidence on the question of costs on or before 28 March 2024.

6. Direct that the question of costs be determined on the papers unless the Court orders otherwise.

7. Note that the dismissal of these proceedings is without prejudice to any right that the plaintiff may have to bring fresh proceedings for damages to which she says she is entitled in her own right arising from events involving AB.

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Decision last updated: 05 March 2024