GR v Secretary, Department of Communities and Justice

[2020] NSWSC 892

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

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

Hearing dates:

6-10 and 13-14 July 2020 (by email exchanges)

Date of orders:

15 July 2020

Decision date:

15 July 2020

Jurisdiction:

Equity - Duty List

Before:

Lindsay J (on the papers)

Decision:

Application for leave to file a notice of motion refused

Catchwords:

CIVIL PROCEDURE – hearings – duty list – frequent interlocutory applications invoking parens patriae jurisdiction – application for leave to file further such application – no basis for urgent interlocutory application to duty judge – application for leave refused

CIVIL PROCEDURE – jurisdiction – inherent jurisdiction – abuse of process – procedural regulation of unwarranted applications – application for leave to file allegedly “urgent” interlocutory application refused

Legislation Cited:

Australian Courts Act 1828

Children and Young Persons (Care and Protection) Act 1998 NSW

The Third Charter of Justice, 13 October 1823

Supreme Court Act 1970 NSW

Uniform Civil Procedure Rules 2005 NSW

Vexatious Proceedings Act 2008 NSW

Cases Cited:

Commonwealth Trading Bank v Inglis (1974) 131 CLR 311

Fountain v Alexander (1982) 150 CLR 615

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

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 (No. 4) [2020] NSWSC 457

P v NSW Trustee and Guardian (2015) NSWSC 579

Re AAA; Report on a Protected Person’s Attainment of the age of majority [2016] NSWSC 805

Re B (No. 1) [2011] NSWSC 1075

Re Eve [1986] 2 SCR 388 at 407-417; (1986) 31 DLR (4th) 1

Re Frieda and Geoffrey [2009] NSWSC 133; 40 Fam LR 608

Re Victoria [2002] NSWSC 647; 29 Fam LR 157

Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218

Wellesley v Duke of Beaufort (2 Russ 1 at 20; 389 ER 236

Williams v Spautz (1992) 174 CLR 509 at 518; Walton v Gardiner (1993) 177 CLR 378

Texts Cited:

-

Category:

Procedural and other rulings

Parties:

Plaintiff: GR, mother of child in care
First Defendant: Secretary, Department of Communities and Justice
Second Defendant: Minister for Families, Communities and Disability Services
Third Defendant: Father of child
Fourth Defendant: Independent Legal Representative of child

Representation:

Counsel:
Plaintiff: Self represented
First and Second Defendants: J Mooney, Solicitor
Third Defendant: Self represented
Fourth Defendant: K Wooi, Solicitors

Solicitors:
First and Second Defendants: Crown Solicitor
Fourth Defendant: Krstina Wooi, Solicitor

File Number(s):

2019/00062836

Publication restriction:

Restriction on publication of anything that might identify child

Judgment

1. Before the Court is an application to the Duty Judge for the time being, by a plaintiff (“GR”) ostensibly “self-represented” but apparently in receipt of legal assistance, for leave to make (in these proceedings, numbered 2019/0062836) what the plaintiff characterises as a proposed “urgent interlocutory application” to the Duty Judge.

2. Upon inquiry by the Court, a solicitor identified by the plaintiff as providing legal assistance to her (Mr Bruce Mackie of HepMac Lawyers) initially disclaimed any instructions, or intention, to appear in the current proceedings or, more specifically, in relation to the notice of motion for which the plaintiff seeks the leave of the Court to file. Initially, he expressly declined to enter an appearance in these proceedings notwithstanding an earlier statement by the plaintiff that she expected him to appear upon the hearing of the motion if leave to file it is granted. After the time for submissions had passed, he wrote to the Court with a proposal that senior counsel might be able to appear before me to assist the plaintiff in a week’s time, beyond the time of my availability as Duty Judge.

3. Whether the plaintiff’s proposed application is properly to be characterised as an application for “interlocutory” or “final” relief is a question to be noticed, but not resolved. In the guise of an “interlocutory” application, she applies to the Court in the current proceedings for orders, said to be available upon an exercise of the Court’s parens patriae jurisdiction, designed to pre-empt the final determination of an appeal instituted by her in this Court against care orders made by the Children’s Court of NSW affecting her child. Her proposed application is advanced in proceedings which were, in substance, dismissed by Kunc J on 28 April 2020: GR v Secretary, Department of Family and Community Services and Justice (No. 4) [2020] NSWSC 457.

4. The plaintiff’s proposed application arises out of the fact that, since 29 June 2018 or thereabouts, her son (now aged 15 years and represented by the fourth defendant as his independent child representative) has been the subject of protective proceedings instituted under the Children and Young Persons (Care and Protection) Act 1998 NSW (“the Care Act”).

5. The boy suffers from autism. He also suffers from an unspecified eating disorder, the nature of which is contested by the plaintiff. For whatever reason (and, perhaps, as a protest against ongoing court proceedings affecting him), he not uncommonly refuses food. He is incontrovertibly under weight.

6. The history of this family’s engagement with the Secretary of the Department of Communities and Justice (the first defendant), the Minister for Families, Communities and Disability Services (the second defendant), the Children’s Court of NSW (“the Children’s Court”) and this Court is recounted in the recent judgment of Ward CJ in Equity published as GR v Secretary, Department of Communities and Justice [2020] NSWSC 739 at [9] and [20]-[116].

7. For present purposes, it is not necessary to set out the full procedural history of these or related proceedings. It is sufficient to note that:

1. on 3 April 2020 the President of the Children’s Court made final orders under the Care Act, allocating all aspects of parental responsibility for the child to the Minister until the child attains 18 years of age.

2. on 24 April 2020 the plaintiff filed a summons in the Supreme Court proceedings numbered 2020/123080 (“the statutory appeal proceedings”) by way of an appeal to this Court from the final orders made by the President of the Children’s Court.

3. in conformity with the Care Act, that appeal will proceed by way of a new hearing.

4. the statutory appeal proceedings have been listed for hearing by the Expedition Judge on 18, 19, 23, 24 and 25 November 2020.

8. The parties to the present proceedings are: the mother of the child (the plaintiff), the Secretary (the first defendant), the Minister (the second defendant), the father of the child (the third defendant), and the child’s Independent Child Representative (the fourth defendant).

9. The plaintiff’s application for leave to make an “urgent interlocutory application” was made via email, on notice to all other parties, and dealt with in a series of email communications between the parties and the Court directed towards: (a) identifying the grounds upon which the application for leave was made; (b) identifying the orders sought on the plaintiff’s proposed application, if leave were to be granted for it to be made; (c) identifying the evidence relied upon by the plaintiff in support of her application for leave and any consequential application; (d) allowing other parties an opportunity to respond to the plaintiff’s application for leave, by written submissions or otherwise; and (e) allowing the plaintiff an opportunity to reply to the cases advanced by other parties.

10. The plaintiff’s application for leave (and any consequential application) was supported by the third defendant.

11. The first, second and fourth defendants opposed the plaintiff’s application for a grant of leave and any consequential application. The first and second defendants explicitly characterised the plaintiff’s proposed application as an abuse of the processes of the Court.

12. In some cases, on an application for leave to make an application of the type presently envisaged by the plaintiff, it might be possible, if not practical, to determine the application for leave without engaging prospective respondents in a formal process of inquiry. The present application for leave is not such a case because, without engagement of the first, second and fourth defendants in a process of inquiry, the likelihood is that facts material to the application might not emerge in an orderly way.

13. The necessity for the plaintiff to obtain a grant of leave for her proposed “urgent interlocutory application” arises from case management procedural orders made by Kunc J on 18 March 2020 as varied by Robb J on 2 April 2020 and further varied by Ward CJ in Equity on 16 June 2020: GR v Secretary, Department of Communities and Justice [2020] NSWSC 739 at [72], [80] and [230]. Those orders continue in operation notwithstanding Kunc J’s dismissal of the plaintiff’s application for parens patriae orders in the principal proceedings. His Honour’s order for dismissal preserved the procedural orders, since confirmed and varied by the Chief Judge.

14. Those orders, in their consolidated form, are to the following effect:

1. Until further order, neither the father nor the mother may make any urgent interlocutory application to the Duty Judge in relation to the child without the prior leave of the Duty Judge for the time being.

2. Any application for such leave is to be made by email to the Associate to the Duty Judge for the time being, copied to the other parties, and must include:

1. a notice of motion specifying the precise relief sought;

2. the affidavit evidence proposed to be relied upon including any evidence as to urgency;

3. a copy of the judgment of Kunc J published as GR v Secretary, Department of Family and Community Services and Justice [2020] NSWSC 259 (18 March 2020);

4. if the application is based on a claim that there is an urgent medical necessity for a hearing in the Duty List, a report by an appropriately qualified medical professional explaining the nature of the change in the medical circumstances of the child the subject of the application, the nature of the orders that should be made in the interests of the child, and the reasons for urgency;

5. in the body of the email to the Associate to the Duty Judge seeking an urgent listing, it be noted that:

1. leave is required to make an urgent interlocutory application; and

2. whether or not there are any upcoming listings before the Supreme Court and/or Court of Appeal in relation to any proceedings relating to the child;

6. a copy of the judgment of Robb J published as GR v Secretary, Department of Family and Community Services and Justice(No. 3) [2020] NSWSC 348 (2 April 2020); and a copy of the judgment of Ward CJ in Equity published as GR v Secretary, Department of Communities and Justice [2020] NSWSC 739 (16 June 2020).

15. Robb J’s orders of 2 April 2020 are the subject of an application by the plaintiff to the Court of Appeal (in proceedings numbered 2020/108351) which is listed for hearing on 26 August 2020. Mr Mackie holds instructions from the plaintiff to obtain counsel’s advice on her prospects for success in the Court of Appeal.

16. The Court’s procedural orders are of a type within the inherent jurisdiction of the Court to restrain a person from making unwarranted and vexatious applications in pending proceedings: Commonwealth Trading Bank v Inglis (1974) 131 CLR 311 at 318-320.

17. In his judgment of 18 March 2020 Kunc J went so far as to observe that he had given thought to whether proceedings should be taken against the plaintiff under the Vexatious Proceedings Act 2008 NSW, recording that if these proceedings were “ordinary” civil litigation he would not have had any hesitation to do so: [2020] NSWSC 259 at [21].

18. His Honour’s hesitancy, echoed in other judgments, focusses on the fact that the plaintiff justifies her frequent applications to the Court on the basis that she seeks to invoke the Court’s parens patriae jurisdiction for orders protective of the child.

19. Before his Honour’s judgment the Court, generally, took the view that it could not dismiss the plaintiff’s applications (repetitive though they may have been) without active inquiry as to the current circumstances of the child, notwithstanding full engagement of all interested parties in Children’s Court proceedings relating to the welfare of the child. Final orders having been made by the President of the Children’s Court, Kunc J dismissed the plaintiff’s application for parens patriae relief in the principal proceedings, and counselled her that any further disputation should be channelled through the plaintiff’s statutory appeal (to this Court) from the President’s final order. The plaintiff has not heard his Honour’s message.

20. The benefit of the doubt given to the plaintiff, procedurally, in her presentation of repetitive applications for an exercise of parens patriae jurisdiction has not (as one might have hoped) educated her about the importance of orderly procedures universally intended to be protective of the child. Her repetitive applications to the Court routinely hide any particular concerns she may have about the child’s welfare behind peremptory demands that he be returned to her care, at home. She routinely attributes bad faith to any, and all, who stand in the way of the child’s immediate return to her care. She demands unlimited, unrestrained access to the Court with a multitude of demanding emails to court staff. She recognises few, if any, constraints on her conduct.

21. A lesson the plaintiff has taken from her experience before a succession of judges of the Court is (to quote her written submissions entitled “Appellant’s Submissions 10 July 2020”) that “’abuse of process’ doesn’t apply in the parens patriae jurisdiction where urgent orders are required of the Court to protect the welfare of a child”.

22. There may be a grain of truth in this (given that the welfare of a child is the Court’s paramount consideration) but it is not universally true, particularly where the welfare of a child has been the subject of an active exercise of protective jurisdiction by the Children’s Court (as a specialist, statutory court), and the legislation that governs that Court provides a procedure (which has been set in train) for its orders to be reviewed on appeal, in the present case an appeal to this (Supreme) Court.

23. The “parens patriae jurisdiction” of the Supreme Court, as it is customarily called, has its historical antecedents in the “infancy” or “wardship” jurisdiction of the Lord Chancellor of England. It was conferred on the Supreme Court by Imperial legislation (the New South Wales Act 1823, section 9 and the Australian Courts Act 1828, section 11) and Letters Patent (The Third Charter of Justice, 13 October 1823, clause 18), continued in operation by section 22 of the Supreme Court Act 1970 NSW.

24. With the commencement of that Act on 1 July 1972, the Court acquired, by virtue of section 23, a new source of jurisdiction sometimes characterised as “inherent” jurisdiction and called in aid as a source of “parens patriae” jurisdiction: Re AAA; Report on a Protected Person’s Attainment of the age of majority [2016] NSWSC 805 at [20]-[27]; Fountain v Alexander (1982) 150 CLR 615 at 633.

25. A convenient statement of the High Court of Australia of the nature, purpose and scope of the parens patriae jurisdiction can be found in Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218 at 258-259.

26. By reference to observations made by Lord Eldon in Wellesley v Duke of Beaufort (1827) 2 Russ 1 at 20; 389 ER 236 at 243, the High Court defined the purpose of the jurisdiction as being “the care of those who are not able to take care of themselves”.

27. The High Court approved the analysis of the jurisdiction by La Forest J of the Canadian Supreme Court in Re Eve [1986] 2 SCR 388 at 407-417; (1986) 31 DLR (4^th) 1 at 14-21, including the observation (at SCR 410; DLR 16) that the “inherent jurisdiction” [exists] to do what is for the benefit of the incompetent” and “[its] limits (or scope) have not, and cannot, be defined”.

28. The jurisdiction is generally reserved for dealing with uncontemplated, or exceptional, situations where it appears necessary for the jurisdiction to be exercised for the protection of those who fall within its ambit: Re Eve [1986] 2 SCR 388 at 411; (1986) 31 DLR (4^th) 1 at 17.

29. The Court exercises caution in the exercise of the jurisdiction in cases (such as the present one) in which the Children’s Court exercises specialist, statutory jurisdiction, subject to a statutory right of appeal. The Court is concerned not to undermine the integrity of statutory procedures. The standard approach is that of Palmer J in Re Victoria [2002] NSWSC 647; 29 Fam LR 157 at [37]-[40], supplemented by that of White J in Re Frieda and Geoffrey [2009] NSWSC 133; 40 Fam LR 608. An exercise of the jurisdiction in this context is said to require “exceptional circumstances”.

30. The Court’s jurisdiction can not properly be invoked to circumvent a statutory appeal procedure: Re B (No. 1) [2011] NSWSC 1075 at [58]-[60].

31. Upon an exercise of the jurisdiction, the Court aims to give effect to a prudential regime for management of the affairs of a person in need of protection (managing risk prudentially), without strife, in the simplest and least expensive way in the interests of that person.

32. The purposive character of the jurisdiction is an important consideration in its exercise.

33. With that firmly in mind, it is not correct to say (as the plaintiff would have it) that “‘abuse of process’ does not apply in the parens patriae jurisdiction where urgent orders are required of the Court to protect the welfare of a child”. Neither the law nor its administration is held hostage to an interested party’s adversarial assertion of an alleged necessity for an exercise of parens patriae jurisdiction. The Court does not surrender control of its processes to an insistent plaintiff. It must, independently, consult the protective purpose for which the jurisdiction exists and retain control of its own processes in pursuit of that purpose.

34. As a superior court, the Supreme Court has inherent jurisdiction to stay proceedings which are an abuse of process: Williams v Spautz (1992) 174 CLR 509 at 518; Walton v Gardiner (1993) 177 CLR 378 at 392-393. That jurisdiction extends to all those categories of case in which the processes and procedures of the Court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness, and to cases in which proceedings are instituted or maintained for a (predominant) purpose other than the purpose for which the jurisdiction of the Court exists.

35. Particular caution is required in characterisation of an application for an order upon an exercise of parens patriae jurisdiction as an abuse of process. This is because of the unique character of the jurisdiction and, in most cases, by definition, the “absence” of the person who, for a want of capacity, is in need of protection. Nevertheless, upon an exercise of parens patriae jurisdiction, the Court must be mindful of a concern not to subject the person in need of protection, his or her carers or the administration of justice to litigation that is vexatious or oppressive.

36. The orders sought in the draft notice of motion sought to be filed by the plaintiff on her application for leave to make an “urgent interlocutory application” are to the following effect:

“(1)   This notice of motion is to be returnable instanter.

(2)   Invoke the parens patriae jurisdiction.

(3)   Order that [the child] placed in his own home forthwith in his mother’s care.

(4)   Order that [the child] is not to be removed from his home or any other place in his mother’s care without leave of the Court after a contested hearing.

(5)   Order that the planned fortnightly depot anti-psychotic injections and all medications except antibiotics, simple analgesics and emergency resuscitation medications be ceased forthwith.

(6)   Order that the first and second defendants are not to give consent to any medical treatments without written leave of the Court after a contested hearing.

(7)   Order that the NDIS funding for [the child] is to be returned to his mother’s control forthwith.

(8)   Order that expert witness Professor Stewart Einfeld and up to two other expert witnesses be given access to [the child], his carers and his entire medical records at one hour’s notice.

(9)   Pursuant to [rules 36.15 and 36.16 of the Uniform Civil Procedure Rules 2005 NSW] set aside or vary the orders of Robb J of 2 April 2020.

(10)   Order that the first and second defendants pay all of the [plaintiff’s] and third defendant’s ongoing costs and costs to date of transport, accommodation, meals and incidentals since 15 March 2019 within two days, due to their moving [the child] and the Children’s Court application to Sydney.

(11)   Order that [the independent legal representative for the child] be replaced with a DLR, direct legal representative.

(12)   Order that the first and second defendants provide a factual medical update without slandering the plaintiff to the Court including all medications given by dose, date and time, current weight and all weights measured, results of all investigations, and all hospital presentations since 1 June stating the reasons for presentation and the results.

(13)   Costs of this application.

(14)   Any other orders the Court sees fit.”

37. The plaintiff’s proposed application for these orders is:

1. substantially similar in form to the orders sought in earlier unsuccessful applications made in the current proceedings.

2. in form, an attempt to pre-empt the hearing of the plaintiff’s “statutory appeal proceedings”, presently pending in the Supreme Court.

3. of a type which, if permitted to be heard in those proceedings, could be accommodated as an interlocutory application in those proceedings.

38. The plaintiff, for her part, appears not to recognise any procedural or substantive boundaries distinguishing the statutory appeal proceedings from these so-called “parens patriae proceedings” in which she is presently making an application for leave to make an “urgent interlocutory application”. Documents advanced by her on her application for leave include documents made available to her, on subpoena, in the statutory appeal proceedings. In the course of her present application, in the “parens patriae proceedings”, she has directed to the Crown Solicitor (representing the Secretary and the Minister) requests for information (about the child’s past and ongoing medical treatment), ostensibly in aid of a case she evidently seeks to advance on the hearing of the statutory appeal proceedings.

39. When viewed in the context of her draft notice of motion, and her general correspondence with the Court in aid of her application for leave to make an “urgent interlocutory application”, the plaintiff’s requests for information about the child’s past and ongoing medical treatment appear, at times, to be subordinated to her persistent demand that the child be released to her care, at home, without any practical oversight by government officers. Her expressions of concern about the health or treatment of the child are rarely unaccompanied by a demand that he be released from the care of the Minister and restored to her care.

40. With one arguable exception, none of the evidence or submissions advanced by the plaintiff on her application for leave is substantially different from evidence and submissions advanced by her in earlier, unsuccessful applications to a succession of Duty Judges.

41. The exception relates to the plaintiff’s submission to the Court of two reports (one undated but said to have been prepared on 3 July 2020, the other dated 12 July 2020) signed by Professor Jon Jureidini, a Senior Consultant Psychiatrist, of the University of Adelaide.

42. Although the reports of Professor Juriedini have been obtained by the plaintiff only recently, I am satisfied that:

1. the topic particularly addressed by him (namely, the prudence of administration of olanzapine by depot injections) has been the subject of recent consideration by other judges of the Court (Justice Slattery in GR v Secretary, Department of Communities and Justice [2020] NSWSC 607 at [33]-[38] and Ward CJ in Equity in GR v Secretary, Department of Communities and Justice [2020] NSWSC 739 at [119]-[122]).

2. on the face of his reports, the information available to Professor Juriedini was incomplete and did not include, inter alia, either the reasons for judgment of the President of the Children’s Court under appeal or the affidavit of Amy Eldridge affirmed 3 June 2020, in which the subject matter of Professor Juriedini’s reports was dealt with.

3. whatever the desirability or otherwise of the administration of olanzapine (a drug administered by the plaintiff herself to her child), that treatment is not life threatening and its administration is supervised by professional medical staff.

43. In her submissions dated 14 July 2020 the fourth defendant (the Independent Legal Representative of the child) drew to the Court’s attention the following extract from a regular, twice-weekly update on the child provided to her and the parents of the child by the Department of Communities and Justice. It was provided on 10 July 2020, in the ordinary course, as a report on the child’s progress in care:

“[The child] has continued to engage very positively with his Japanese tutor and is really enjoying being able to practice his Japanese language skills. He is also watching the Japanese news and reads Japanese stories to his carers and teaches them how to write words in Japanese.

[The child] also looks forward to his mentoring sessions and enthusiastically engages in these sessions.

[The child] continues to eat well, including home cooked meals such as spaghetti and meatballs, sausage with mashed potato and vegetables. He is still mostly eating three meals and some snacks each day.

[The child] has been bathing regularly and has brushed his teeth and uses mouthwash.

[The child] engages well with his care team and continues to participate in a variety of activities with them.”

44. The plaintiff’s application for leave to file a notice of motion to make an “urgent interlocutory application” to the Duty Judge for parens patriae relief must be refused:

1. In light of Kunc J’s dismissal of the substance of the principal proceedings, and the pendency of the plaintiff’s statutory appeal proceedings, the present proceedings are not an appropriate vehicle for the making of an application for parens patriae relief, assuming it to be an application with a factual foundation.

2. The plaintiff’s proposed application is an abuse of the processes of the Court insofar as it seeks (without any material change in circumstances) to re-agitate questions already determined by the Court.

3. Although the plaintiff raises persistent questions about the medical treatment being afforded to the child, there is no serious threat to the welfare of the child from the treatment he is currently receiving under the care of the Minister, and the appropriate vehicle for disputed questions to be the subject of further debate is the statutory appeal proceedings.

45. The only order I make, in disposition of the plaintiff’s application for leave, is an order that the application be refused.

46. I do not intend, by this order, to preclude the plaintiff from making such, if any, interlocutory application she may be advised to make in the statutory appeal proceedings. If (as I am given to understand) she has some prospect of obtaining legal assistance in coming weeks, her lawyers might assist her to direct her attention to the orderly conduct of her appeal. In any event, attention is drawn to the observations of Kunc J in GR v Secretary, Department of Family and Community Services and Justice (No. 4) [2020] NSWSC 457 at [30]-[31] and those of the Chief Judge in GR v Secretary, Department of Communities and Justice [2020] NSWSC 739 at [93]-[97].

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Amendments

15 July 2020 - Paragraph 35, new sentence in the second line beginning "This is because...."

Paragraph 36, quotation marks; orders indented.

Decision last updated: 15 July 2020