GR v Secretary, Department of Communities and Justice
[2022] NSWCA 90
•09 June 2022
Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: GR v Secretary, Department of Communities and Justice [2022] NSWCA 90 Hearing dates: In chambers Date of orders: 09 June 2022 Decision date: 09 June 2022 Before: Brereton JA Decision: See at [23].
Legislation Cited: Supreme Court Act 1970, ss 75A(7), (8), (9)
Cases Cited: GR v Secretary, Department of Communities and Justice [2021] NSWCA 267
Category: Procedural rulings Parties: GR (applicant)
Secretary, Department of Communities and Justice (first respondent)
Minister for Families Communities and Disability Services (second respondent)
BB (third respondent)
AB (fourth respondent)Representation: Counsel:
Solicitors:
File Number(s): 2021/262590 Decision under appeal
- Court or tribunal:
- Supreme Court of New South Wales
- Jurisdiction:
- Equity – Expedition List
- Citation:
[2021] NSWSC 1081
- Date of Decision:
- 27 August 2021
- Before:
- Sackar J
- File Number(s):
- 2020/123080
Judgment
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By motion filed on 7 June 2022 the applicant GR seeks a number of orders, with which I deal sequentially below.
(1) Motion to be returnable instanter and determined in chambers
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As requested, I am dealing with the motion in chambers. The other parties or their legal representatives were copied on the email from GR to my chambers attaching the motion, but they have not been heard. However, such orders as I propose to make are not of a kind as to require that they be heard.
(2) Leave to adduce new evidence
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The question whether leave to adduce further evidence under Supreme Court Act 1970, s 75A(7), (8) and (9), should be granted, is a question for the full court hearing the appeal. It is not appropriate for me as a single judge to grant such leave on a motion. However, that there is such an application to be made before the full court is relevant to considering the application for leave to issue subpoenas to which I refer below. Nonetheless, that must be viewed in the circumstances where the applicant has not articulated how any further evidence is said to relate to and inform any of her grounds of appeal, and where on a perusal of the eleven enumerated grounds of appeal in the further amended draft notice of appeal, it is not apparent that any would be informed by “further evidence”. Nor do the applicant’s latest written submissions (of 6 June 2022) illuminate this question.
(3) Instant general access to documents produced on subpoena to date
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It appears, from GR’s affidavit of 8 June 2022 and from a number of emails that she has sent to my chambers, that this application relates to documents said to have been produced to the court on subpoena on or about 6 October 2021. Such documents as were produced on or about 6 October 2021 must have been produced in answer to the subpoenas that were the subject of consideration by Simpson AJA in GR v Secretary, Department of Communities and Justice,[1] when her Honour ordered that those subpoenas be set aside. Even if the documents are retained by the court, it would be inappropriate to grant access to documents produced pursuant to subpoenas which have been set aside.
1. [2021] NSWCA 267.
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Moreover, neither the motion nor any supporting material identifies the producing parties, let alone the documents in question. Without that information, it is impossible for the Court to grant access as requested, as I have no way of knowing to what it would be that I would be granting access.
(4) Leave to issue subpoenas for production
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At the directions hearing on 6 May 2022, I made the following direction:
“3. By 9 May 2022 the applicant lodge with my associate and serve on the other parties, any draft subpoenas for which leave to issue is sought. Any objections to the proposed draft subpoenas are to be lodged with my associate by 11 May 2022. The proposed draft subpoenas and objections, if any, will be dealt with in chambers.”
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At the time, I indicated that while wide-ranging subpoenas would not likely be permitted, given that the appeal is by way of rehearing I would be inclined to permit the issue of subpoenas which sought to update the evidence to the date of hearing of the appeal. The hearing at first instance commenced on 5 July and concluded on 11 August 2021, and judgment was delivered on 27 August 2021. In those circumstances, documentary material pertaining to the child’s welfare and treatment since August 2021 might legitimately be the subject of subpoena.
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GR lodged a number of draft subpoenas, to which objection was taken. Those subpoenas consistently sought material for periods which commenced well before August 2021 and for that reason, as I indicated at the directions hearing on 25 May 2022, leave to issue them was refused.
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Subsequently, GR has forwarded further draft subpoenas to my chambers, culminating in the motion now under consideration.
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The hearing is set to commence on next Tuesday 15 June. Monday is a public holiday. The subpoenas would in any event require an abridgement of time for service. There is no evidence of any approach to the proposed recipients to ascertain whether they are in a position to comply within that timeframe.
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Each of the draft subpoenas continues to seek documents for a period which, despite my repeated endeavours to explain that I might well be prepared to permit the issue of subpoenas if they were confined to the period after the hearing at first instance, commences well before August 2021: 1 June 2020 in the case of Blacktown Hospital; 1 March 2021 in the case of Impact Youth Services; 1 November 2019 in the case of Dr Moussad; 27 October 2004 in the case of Professor Pickles; 1 March 2021 in the case of Westmead Children’s Hospital.
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In those circumstances, leave to issue the draft subpoenas is refused.
Leave to issue subpoenas to give evidence
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GR seeks leave to issue subpoenas for Professors Pickles, Einfeld and Jureidini to attend to give evidence at the appeal. The supporting material indicates that the purpose of requiring their attendance is “for cross-examination”. There is no indication of what evidence it is expected they might give, or how their evidence might relate to any ground of appeal. There is no indication that any of these witnesses has been involved in the child’s treatment after August 2021 so as to be in a position to give relevant updating evidence.
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Again, the subpoenas would in any event require an abridgement of time for service, and there is no evidence of any approach to the recipients to ascertain whether they are in a position to comply.
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In those circumstances, leave to issue the draft subpoenas is refused.
Leave to use 3-volume tender bundle and 3-volume black books
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At the directions hearing on 6 May 2022, in order to endeavour to identify and confine the material that would be before the Court, I made the following directions:
“1. By 11 May 2022 the applicant file and serve a draft amended Notice of Appeal and an index of relevant documents for the purposes of the appeal.
2. By 18 May 2022 the respondents file and serve an index of additional relevant documents for the purposes of the appeal.”
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On 25 May, the applicant provided a list comprising 12 paragraphs which described, in very generic terms, bundles or classes of documents on which she proposed to rely.
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On 25 May 2022 I made the following direction:
“1. The applicant is to serve a list of any documents to be relied on which are not included in the current appeal books by 6 June 2022, such list must not include documents which are already in the extant appeal books.”
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Following the provision of various documents and further generic lists by GR, as well as an email indicating which of the numbered paragraphs in her original list were “missing” from the extant appeal books, on 7 June 2022 my chambers notified her:
“Court Book – existing material: To the extent that the documents on which you rely are in the existing white folders, you need to provide accurate references for each document you have identified, including Volume, Tab and page number of the most recent books provided by the Crown Solicitors Office.
Court book – additional material: To the extent that you wish to rely on any material not in the existing white folders, you need to provide a copy of it to the other parties and the Court.”
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As I understand the position, although the “3-volume tender bundle” referred to in the present motion was at first received in evidence at the trial, it was ultimately admitted, and in any event all the documents contained in it were in evidence. While, in order to avoid duplication, I have endeavoured to require GR more specifically to identify the documents on which she wishes to rely by reference to the white folders, it seems to me that if those documents were otherwise in evidence, there will be no prejudice to the respondents if she is permitted to use her “3-volume tender bundle”, as it has been served and contains documents already in the white folders. Subject to any objection the respondents may have at the hearing of the appeal, I would grant leave to the applicant to rely on her “3-volume tender bundle”.
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The “3-volume black books” appear to be the “black books” from another proceeding in this court (2019/305649), and contain the transcripts of proceedings before the Children’s Court and in the Equity Division, other than the proceedings before Sackar J. It is not apparent that this material was before Sackar J, and thus it is not apparent that it forms part of the record for the present appeal. If upon the hearing of the appeal there are particular parts of these “3 black books” to which counsel wishes to refer, it will be necessary for a proper basis for reference to them to be established. At this stage, it is inappropriate to grant leave to rely upon them generally.
Additional observation
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Notwithstanding the above, in an appeal by way of rehearing, where the welfare of a child is in issue and the child’s status is not stable, it is highly desirable that this Court be informed, by admissible evidence, of any developments affecting the child and his welfare since the hearing at first instance, including his current treatment plans and medication, contact with his parents, and planning for his transition to adulthood. The Minister who has parental responsibility, and the Independent Legal Representative, are in a position to assist the Court in that respect, and their lawyers will no doubt be aware of their heightened obligations to the Court in a children’s case.
Conclusion
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My orders are:
leave to issue subpoenas for production to Westmead Children’s Hospital, Blacktown Hospital, Impact Youth Services and Dr Moussad is refused;
leave to issue subpoenas to give evidence to Professors Pickles, Einfeld and Jureidini is refused;
leave is granted to the applicant GR to rely on her “3-volume tender bundle”, subject to any objection the respondents may have at the hearing of the appeal;
the notice of motion filed on 7 May 2022 is otherwise dismissed.
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Endnote
Decision last updated: 09 June 2022
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