GR v Secretary, Department of Communities and Justice

[2020] NSWSC 645

Supreme Court

New South Wales

Medium Neutral Citation:	GR v Secretary, Department of Communities and Justice [2020] NSWSC 645
Hearing dates:	27 May 2020
Decision date:	27 May 2020
Jurisdiction:	Equity
Before:	Leeming JA
Decision:	Application made for orders mirroring those in the notice of motion filed on 26 May 2020 in the Court of Appeal dismissed.
Catchwords:	PRACTICE – informal application for urgent relief – applicant subject to requirement to obtain leave because of numerous previous applications – non-compliance with regime – application dismissed
Cases Cited:	GR v Secretary, Department of Family and Community Services and Justice & Ors (No 3) [2020] NSWSC 259 GR v Secretary, Department of Family and Community Services and Justice [2020] NSWSC 348
Category:	Procedural and other rulings
Parties:	GR (Applicant) Secretary, Department of Communities and Justice (First Respondent) Minister for Families, Communities and Disability Services (Second Respondent) BR (Third Respondent) Kristina Wooi (Fourth Respondent) AR (Fifth Respondent)
Representation:	Counsel: Applicant and Third Respondent (Self-represented) M Anderson (First and Second Respondents) E Stolier (Fourth Respondent)   Solicitors: Crown Solicitor (First and Second Respondents) Kristina Wooi as Independent Legal Representative (Fourth Respondent)
File Number(s):	2020/123080
Publication restriction:	Nil

EX TEMPORE Judgment

1. LEEMING JA: Before me is a notice of motion filed at 3.33pm yesterday, 26 May 2020, in proceedings brought by a plaintiff I shall describe as “GR”. It seeks, among other things, urgent relief that a child “be placed in his own home forthwith in his mother's care” and that “the planned fortnightly depot antipsychotic injections and all medications, except antibiotics, simple analgesics and emergency resuscitation medications, be ceased forthwith”. Although filed in the Court of Appeal, the orders it contains are sought from the Equity Division, and urgently.

2. The application was provided to my Associate at approximately 10 o'clock this morning, accompanied by in excess of 700 pages of supporting material, all in electronic form. I gather from what has been said on behalf of the first, second and fourth respondents that they were given no advance notice of the application, no differently from the Court.

3. GR is presently subject to orders made on 18 March 2020 and varied on 2 April 2020: see GR v Secretary, Department of Family and Community Services and Justice & Ors (No 3) [2020] NSWSC 259 and GR v Secretary, Department of Family and Community Services and Justice [2020] NSWSC 348. Those judgments explain the extraordinary circumstances which led to the orders being made, which need not be summarised here. Relevantly, those orders provide that no application may be made by GR, or the child's father (who is the third respondent to the notice of motion), in the nature of any urgent interlocutory application to the Duty Judge in relation to their child without prior leave of the Duty Judge for the time being. The order goes on to provide that any application for 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 (a) a notice of motion specifying the precise relief sought; (b) the affidavit evidence proposed to be relied upon, including any evidence as to urgency; and (c) a copy of this judgment. On 2 April 2020, that order was varied by adding the following paragraph, namely:

“(d) if the application is based on a claim that there is an urgent medical necessity for 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 the urgency."

4. The notice of motion did not seek leave. The fact that leave was required before anything could occur was not mentioned in GR’s email to my Associate. The 18 March judgment was attached, but not the later judgment dealing with the report from a medical professional. Nothing was said about GR having been before the Chief Judge in Equity yesterday, nor the hearing which is to occur next week.

5. The matter was listed before me as Duty Judge shortly after 11 o'clock, after other matters in the list had been heard, and the hearing has proceeded for some 40 minutes, all parties appearing by telephone. The application is opposed by the first, second and fourth respondents, but embraced by the third respondent.

6. The gravamen of the mother's submissions concern what has happened, so she says, in the last 24 to 48 hours. She has said that there was a failed discharge last night, of which she was provided notice by email at around 6pm. She says that subsequently she has been in contact with the medical expert who has been engaged in this matter for some time, Emeritus Professor Stewart Einfeld, and that he has made a response to her.

7. However, conspicuous by its absence from the material sent either to the Court or to the other parties is the evidence, whether in the form of documents or affidavit, upon which she wishes to rely upon in this proceeding as to the events in the last 48 hours. Likewise conspicuous by its absence from the proceedings is any report from Emeritus Professor Einfeld or any other appropriately qualified professional addressing the matters in order 2(d), which I have referred to above.

8. Against this, the mother has maintained that (a) the material she wishes to rely upon was sent to her by the respondents; (b) it could be provided to the Court during the hearing; and (c) Emeritus Professor Einfeld is willing to participate in this hearing by telephone and give evidence of his opinions viva voce.

9. None of those attempts to comply with the order is satisfactory. Each is apt to cause delay and prejudice. They are also apt to increase the costs which parties will incur in responding to the application. Costs, it might be said, are a relatively small aspect of the stakes here, which are very high, turning as they do upon the welfare of a young person. I mention costs because both the mother and the father have at some length explained their concern about the costs which have been incurred in litigation, most of which, so far as I can see, has been brought about by their applications.

10. It seems to me to be clear beyond dispute that the orders binding the mother are applicable and have not been complied with. I gave the mother three opportunities to explain how that came about or how she claims there was compliance with those orders, and the result is the oral submissions which I have summarised above. In circumstances where there is a serious breach of orders binding the mother, I propose to dismiss the notice of motion filed yesterday afternoon.

11. After giving those reasons, GR has explained that she has now emailed to the Court, and perhaps to the other parties, an email response from Professor Einfeld, which, I apprehend, is relied upon in compliance with order 2(d). On at least two occasions throughout the hearing, I made it pellucidly plain to the mother that one thing that was not going to happen was that this hearing would proceed in a way where she would seek to supplement her evidence as it went along. She said she was ready to proceed. It is plain that despite my attempts, she has not understood what I said. Otherwise, she would not have done what she did.

12. I say again that in the event that any further application is made to the Duty Judge in relation to the welfare of this child, it is essential that the mother or father supply, before the application is heard, copies of all of the material upon which they wish to rely. I assume that on the email system somewhere there is an email - or maybe it has not yet arrived - from the mother. Whatever that email is will be printed out and marked MFI B for the purpose of this application.

13. The hearing today has been conducted on the basis that the mother sought orders contained in a notice of motion that was emailed to my chambers, as I mentioned, at around about or shortly before 10 o'clock this morning. That notice of motion was filed in separate proceedings brought by her in the Court of Appeal. The proceedings today have in that respect proceeded informally. I dismiss the application which was made before me today for orders mirroring those in the motion filed on 26 May 2020 in the Court of Appeal.

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Decision last updated: 28 May 2020