GR v Secretary, Department of Communities and Justice

[2021] NSWCA 267

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

GR v Secretary, Department of Communities and Justice [2021] NSWCA 267

Hearing dates:

28 October 2021

Date of orders:

5 November 2021

Decision date:

05 November 2021

Before:

Simpson AJA

Decision:

1. On the notice of motion filed by the first and second respondents on 5 October 2021:

a) the subpoena issued by GR on 27 September 2021 requiring Dr Akram Moussad to produce documents is set aside;

b) the subpoena issued by GR on 27 September 2021 requiring Ms Katherine Gordon of Impact Youth Services to produce documents is set aside;

c) the subpoena issued by GR on 27 September 2021 requiring the Proper Officer of John Hunter Hospital to produce documents is set aside;

d) the subpoena issued by GR on 30 September 2021 requiring the Proper Officer of John Hunter Hospital to produce documents is set aside;

e) the subpoena issued by GR on 27 September 2021 requiring the lawyer of the medico-legal department of the Sydney Children’s Hospital at Randwick to produce documents is set aside;

f) the subpoena issued by GR on 27 September 2021 requiring the lawyer of the medico-legal department of Westmead Children’s Hospital to produce documents is set aside.

2. The notice of motion filed by the applicant on 6 October 2021 is dismissed with costs.

3. The notice of motion filed by BB on 19 October is dismissed with costs.

Catchwords:

CIVIL PROCEDURE - subpoenas - application to set aside - where production of material unduly burdensome and would not facilitate appeal

CHILD WELFARE - care proceedings - interlocutory application - whether orders should be made allowing child to live with mother or allowing daily contact - whether tutor should be appointed

Legislation Cited:

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

Children’s Court Act 1987 (NSW)

Supreme Court Act 1970 (NSW

Cases Cited:

GR v Secretary, Department of Communities & Justice [2020] NSWSC 607

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

GR v Secretary, Department of Communities and Justice [2021] NSWCA 234

GR v The Department of Communities and Justice [2021] NSWSC 1081

Category:

Procedural rulings

Parties:

GR (Applicant)
Secretary, Department of Communities & Justice (First Respondent)
Minister for Families, Communities & Disability Services (Second Respondent)
BB (Third Respondent)

Representation:

Counsel:
F Sinclair (Applicant)
M Anderson (First &Second Respondents)
Self-represented (Third Respondent)

Solicitors:
Vaikom Law (Applicant)
Crown Solicitor of NSW (First & Second Respondent)
Self-represented (Third Respondent)

File Number(s):

2021/262590

Publication restriction:

Pseudonyms used

Judgment

1. SIMPSON AJA: Before the Court are three notices of motion concerning a pending application for leave to appeal. The President has directed that the application be heard concurrently with any appeal for which leave is granted. On 20 September 2021 I directed that the hearing be expedited. Hearing dates of 1 and 2 December 2021 have been allocated.

2. Before moving to the notices of motion, it is necessary to set out some background circumstances.

The parties

3. The applicant has been, and will continue to be, referred to as “GR”. GR is the mother of a young man (now 17 years of age) who has been, and will continue to be, referred to as “AB”. AB is a “young person” within the meaning of the Children and Young Person (Care and Protection) Act 1998 (NSW) (“the Care and Protection Act”). AB is the fourth respondent to the application. The first and second respondents are, respectively, the Secretary of the Department of Communities and Justice (“the Secretary”) and the Minister for Families, Communities and Disability Services (“the Minister”). The third respondent, who is the father of AB, has been, and will continue to be, referred to as “BB”. The Secretary and the Minister have, throughout the relevant proceedings, adopted a common position.

Background

4. A lengthy saga of litigation has preceded the present application. It is, to some extent, recounted in a previous judgment of mine (GR v Secretary, Department of Communities and Justice [2021] NSWCA 234) and in many decisions of the Supreme Court identified in that judgment: see, particularly, GR v Secretary, Department of Communities and Justice [2020] NSWSC 739 per Ward CJ in Eq. Put simply, the background is as follows.

5. On 3 April 2020, pursuant to s 79 of the Care and Protection Act, the President of the Children’s Court made an order allocating to the Minister all aspects of parental responsibility for AB. Pursuant to s 91 of the Care and Protection Act GR appealed to the Supreme Court. That appeal (“the s 91 appeal”) proceeded over fourteen days in July and August 2021, in the Equity Division. A vast amount of medical evidence, much of it produced under subpoena, was available and was tendered.

6. On 27 August 2021 Sackar J (“the primary judge”) dismissed the s 91 appeal and confirmed the orders of the Children’s Court: GR v The Department of Communities and Justice [2021] NSWSC 1081. It is against those orders that GR now seeks to appeal. That application is the subject matter of the three notices of motion for present determination. The application is the most recent of numerous attempts made by GR to recover parental responsibility for AB. She has, for the most part, appeared unrepresented. In the present proceedings she was represented by counsel.

7. For the purposes of the application GR has caused six subpoenas to be issued. By the notice of motion filed first in time (5 October 2021), the Secretary and the Minister, pursuant to UCPR 33.4 (1), seek orders setting aside each subpoena. By notice of motion filed on 6 October 2021 GR sought a variety of orders, only some of which are now pressed. That is the notice of motion filed second in time. The third notice of motion was filed by BB, who also seeks a variety of orders. I will deal with the notices of motion in the sequence in which they were filed.

1. The notice of motion filed on behalf of the Secretary and Minister on 5 October 2021

8. Six subpoenas were issued by GR. Five were issued on 27 September 2021 and were given a return date of 6 October 2021. One subpoena was issued on 30 September 2021 and was given a return date of 11 October 2021. The subpoenas are:

1. a subpoena directed to Dr Akram Moussad, requiring production of:

“a copy of the entire unredacted file of [AB] … both paper and electronic, in which records were created between 6 am on 1 November 2019 and 6 pm on 30 September 2021 … including all medications prescribed to him by your practice or by any other doctor or hospital doctor. All investigations ordered and results for [AB] for the period, including a digital copy of electronic imaging scans with any reports and ECG traces with reports. All communications received from any hospital in any form regarding [AB] and records of all medications prescribed or investigations or treatments administered by any carer, nurse, doctor or hospital, all vaccines, vitamins, fluids or nasogastric medications or fluids administered by any carer, nurse, doctor or hospital. All home visit records to [AB] from yourself, any other doctor, nurse, psychologist, physiotherapist or allied health professional and your observations of [AB] each time you saw him and all related Medicare items billed and PBS records.”;

1. a subpoena directed to Ms Catherine Gordon of Impact Youth Services, requiring production, again, of a copy of “the entire unredacted file or files of AB, paper or electronic, created between 6 am on 1 November 2018 and 6 pm on 30 September 2021”, and including various specified documentary records;

2. a subpoena directed to the “proper officer” of the John Hunter Hospital in Newcastle. The Schedule of documents of which production is required extends over two typed pages and includes a copy of the “entire unredacted hospital file or files” of AB, paper or electronic, created between 6 am on 18 May 2018 and 6 pm on 30 September 2021. The remaining paragraphs detail every conceivable medical record that might exist;

3. a second subpoena directed to “the proper officer” of the John Hunter Hospital, issued on 30 September 2021. Again, the Schedule of documents required to be produced extends over two typed pages and include precisely the kind of material identified in the earlier subpoena created during the same range of dates;

4. a subpoena directed to a named lawyer of the medico legal department of the Sydney Children’s Hospital at Randwick, requiring a production of documents essentially of the same kind as referred to in the earlier subpoenas created between 6 am on 1 February 2019 and 6 pm on 30 September 2021;

5. a subpoena directed to the same named lawyer of the medico legal department of the Westmead Children’s Hospital, again requiring production of documents of the same kind created between 6 am on 1 November 2019 and 6 pm on 30 September 2021.

The application to set aside

9. On behalf of the Secretary and Minister reliance was placed on an affidavit affirmed on 1 October 2021 by Amy Eldridge, a “Manager Casework” employed in the Department of Communities and Justice. Ms Eldridge referred to eight subpoenas issued at the request of GR in the s 91 appeal proceeding. Five were directed to the Sydney Children’s Hospital at Westmead and required production of a great deal of specified material, of much the same kind as is the subject of the present subpoenas. For the purposes of the s 91 appeal GR was granted access to the material produced, in some cases in redacted form. One subpoena was directed to Impact Youth Services, one to the Randwick Children’s Hospital and one to the John Hunter Hospital. Again, GR was granted access to the material produced in answer to the subpoenas, again, some of it in redacted form.

10. During the course of the hearing of the s 91 appeal GR requested that the Secretary and Minister make Dr Moussad’s “entire medical records” available. Dr Moussad is, apparently (or has been) AB’s treating general practitioner. Dr Moussad produced records which were tendered into evidence and were available to GR.

11. In all about 13,000 pages of material were produced in response to the eight subpoenas and the request to Dr Moussad. All was available to the primary judge and, subject to some redactions, to the parties, including GR. The redactions that were made were of personal contact details (email addresses, telephone numbers), material that would disclose AB’s current location and material to which s 29 of the Care and Protection Act applies (being, essentially, reports or information provided to the Secretary).

12. The power to set aside a subpoena is conferred by UCPR 53.4(1), and is in the widest possible form. Subrule 1 provides:

“The Court may, on the application of a party or any person having a sufficient interest, set aside a subpoena in whole or in part, or grant other relief in respect of it.”

13. Over the years principles have developed as to the application of r 33.4(1). Those principles are not controversial. The material sought must be such as to have sufficient relevance to the issues in the proceeding in which the subpoena is issued. A subpoena will be set aside where compliance would impose an undue burden on the recipient or would be oppressive. Oppression may consist in the number of documents or the extent of the materials sought, or the cost involved in compliance. A subpoena may be set aside if the material production of which is sought cannot be seen to have a legitimate forensic purpose in the proceeding.

14. Two bases for the application to set aside the subpoenas were advanced on behalf of the Secretary and the Minister. The first lay in the nature in the appeal for which leave is sought. Any appeal will be governed by s 75A of the Supreme Court Act 1970 (NSW). By subs (5) of s 75A an appeal is to be by way of rehearing; by subs (6) this Court has the powers and duties of the primary judge. Provision is made in subs (7) for further evidence to be admitted but, where the appeal is from a judgment after a trial or hearing on the merits, that power is limited, by subs (8), to “special grounds”. By subs (9) that limitation does not apply to further evidence concerning matters postdating the hearing.

15. UCPR 51.1(1) requires that an application to receive additional evidence be made by notice of motion. So far as the evidence goes, no such motion has been filed. It was stated on behalf of the Secretary and Minister that GR had not indicated whether she intended to make such an application and had, instead, reserved her right in that respect. I observe that, in my previous judgment, (at [22]) I noted that, in her draft notice of appeal, GR indicated that she proposed to seek leave under s 75A(7) to adduce further evidence. In those circumstances, and bearing in mind that the proceeding involves the custodial arrangements of a young person, I would hesitate to set aside subpoenas only on the basis that they sought production of material postdating the orders from which the appeal is brought.

16. A second, and significantly firmer, basis for the application concerned the nature and extent of the material sought in the six subpoenas. The bulk of that material had been the subject of the numerous subpoenas issued in the s 91 appeal and had been produced and made available. Production in response to the present subpoenas would largely replicate what had already been produced and would impose a further, undue, burden on the recipients.

17. GR’s response to this was that the material previously produced related only to a time that ended with the hearing of the s 91 appeal – August 2021. She claimed that, as the mother of AB, she is entitled to current, updated, information about AB’s care and treatment. In that respect it may be observed that the purpose of a subpoena is not to provide for the enforcement of parental rights; it is to provide material relevant to the proceeding in which the subpoena is issued. Moreover, as can be seen from the date spans in the schedules to the six subpoenas in question, the material sought dates back to 2018-2019 and encompasses the material already produced for the s 91 appeal. When this was put to counsel who appeared for GR it was acknowledged that the time period for which material was sought could be confined so as to require continuation and updating of material already provided. As issued, however, the subpoenas require production of duplicates of much of what has already been produced.

18. It is also not clear, on the evidence before me in this proceeding, that any of the grounds of the proposed appeal would be elucidated by updating the medical evidence that was before the primary judge. That would depend on the grounds that GR would wish to advance on appeal. The draft notice of appeal was not in evidence in this proceeding.

19. I accept that repeated production of that material would be unduly burdensome and would not facilitate any object of the appeal.

20. I propose to make an order setting aside each of the subpoenas listed above.

1. The Notice of Motion filed by GR on 6 October 2021

21. Ten substantive orders (plus an order for costs) were sought in GR’s notice of motion. Ultimately, she pressed only for the following (the numbers are the numbers of the orders sought in the notice of motion):

1. an order that she be granted first access to the records produced by John Hunter Hospital and Dr Akram Moussad;

2. an order that she live with AB starting immediately, or, alternatively, a regime for daily contact pursuant to s 86(1)(a) of the Care & Protection Act; on the hearing, a further alternative was added, seeking “such other access orders as the court decides”.

3. an order that a tutor be appointed for AB, and that AB be allowed to participate in the appeal hearing directly and via his tutor;

4. an order that AB be facilitated access to all independent experts as nominated by GR.

Given the determination I have already made concerning the subpoenas, proposed order 5 falls away.

22. In support of her application GR relied on an affidavit affirmed by her on 28 October 2020. I shall deal with each of the orders sought in turn.

Order 7

23. A similar application was made by GR in the previous proceeding before me. I rejected it on the ground of insufficient evidence.

24. In support of her application for access GR made, essentially, two points, the first was that 27 October (the day before the hearing of the notices of motion) was AB’s 17^th birthday and she was not permitted to make contact with him, even to wish him a happy birthday.

25. The second point made by GR was that AB has now been accepted into the National Disability Insurance Scheme (“NDIS”) and a Plan approved for him. She annexed to her affidavit a letter from Hunter Primary Care of 25 October 2021 to GR and a letter from NDIS (addressed to AB) and a note addressed to “To Whom it May Concern”. The last was from the Newcastle Maintenance Group, and stated that that organisation had done work for GR and had had no problem with her or with AB and were happy to help out in future if needed. The Hunter Primary Care letter advised GR that AB’s NDIS plan had been received and the referral had commenced. It proposed implementing, with GR’s consent, services of a range of therapists with a view to AB staying in his own home and working to monitor his health and well-being and to develop his independent daily living skills. The letter concluded:

“We can assist in providing the necessary support and supervision of all services for [AB] to keep him safe and in the full time care of his Mother ([GR]), in his own home at [XXX] or wherever he chooses to live with his Mother.”

26. I appreciate that this evidence was an attempt by GR to rectify the deficiency in evidence that had been the reason for my refusal to make an access or contact order in the earlier proceedings. But, positive as the correspondence is, it does not make up the deficiency. It does not provide a basis to override the orders made by the Children’s Court, confirmed by the primary judge, that “all aspects of parental responsibility” are allocated to the Minister. Hunter Primary Care may be in a position to offer the support identified in the letter, but it does not justify an incursion, by this Court, into the care arrangements presently in place. These are the subject of the application for leave to appeal

27. I decline to make order 7.

Order 10: appointment of a tutor

28. By order 10 GR seeks the appointment of a tutor for AB. It is apparent that she seeks this order for the purpose of displacing arrangements that have been in place to date by which AB has had the benefit of an independent legal representative, a lawyer of the Legal Aid Commission. It will be necessary to give consideration to those arrangements in due course. First, however, it should be noted that a tutor may be appointed to act on behalf of a person under a legal disability (as, by reason of his age, AB is) who is the initiator of legal proceedings. It is not an appropriate role for the representation of a person, as is AB, who is a defendant or respondent to proceedings. That is the role of a guardian ad litem. That is no mere pedantry. The Uniform Civil Procedure Rules contain detailed provisions with respect to tutors.

29. UCPR 7.14 provides that a person under a legal incapacity may not commence or carry on proceedings except by a tutor. By subr (2), unless the court orders otherwise, a tutor may not commence or carry on proceedings except by a solicitor. By r 7.16 a tutor may not commence or carry on proceedings on behalf of a person under a legal incapacity unless there have been filed the tutor’s consent to act as tutor and a certificate, signed by the tutor’s solicitor in the proceedings, to the effect that the tutor does not have any interest in the proceedings adverse to the interests of the person under legal incapacity.

30. By r 7.18(1), in any proceedings in which a party is or becomes a person under legal incapacity the court may, if the person does not have a tutor, appoint a tutor or, if the person does have a tutor, may remove that tutor and appoint another. It is, presumably, that power that GR invokes.

By subr (5) of r 7.18, in proceedings on a motion for the appointment of a tutor, evidence in support of the motion must include:

(a)   evidence that the party for whom a tutor is to be appointed is a person under a legal incapacity, and

(b)   evidence that the proposed tutor consents to being appointed and does not have any interest in the proceeding adverse to the interests of the person under legal incapacity.

31. The first of these is not in issue: as indicated above, by reason of his age, AB is under a legal incapacity. However, evidence that the proposed tutor consents to being appointed and does not have an adverse interest is lacking. The only evidence before the court is contained in GR’s affidavit, in which she says:

“18.   I have spoken with my nominated tutor who is experienced as a carer of children in care. He consents to be AB’s Tutor. I believe he would take AB’s best interests on board in an impartial and unbiased way.”

32. GR has not identified the person she proposes to be appointed as tutor and there is no evidence of his consent, nor that he understands what is involved in undertaking the role of tutor. I appreciate that the Rules contain no parallel requirements for the appointment of a guardian ad litem; however, the role involves significant obligations that must be understood and accepted by anybody who is appointed. I am disposed to the notion that both AB and the Court would benefit by the appointment of a guardian ad litem. At present, there is no evidentiary basis for such an appointment. Nor am I aware of any statutory basis for such an appointment. I decline to make order 10 as sought by GR.

33. The more difficult question concerns the role, if any, of an “independent legal representative” for AB. There was no direct evidence as to the current position concerning AB’s representation. Some useful history can be gleaned from written submissions made on behalf of the Secretary and the Minister, and from submissions made by the Legal Aid Commission, signed by Ms Kerri Phillips.

34. From what is recounted in those submissions, and a number of the decisions of the Equity Division to which reference has been made, the following appears to have been the position, at least until recently.

35. During the course of the proceeding in the Children’s Court a legal representative (Ms Krstina Wooi) was appointed pursuant to s 99 of the Care & Protection Act (see [43] below). Presumably, that appointment came to an end when final orders were made by the President of the Children’s Court. When GR filed the s 91 appeal she did not name AB as a party. AB became a party (the fifth defendant) to the s 91 appeal by order of Slattery J on 22 May 2020: GR v Secretary, Department of Communities & Justice [2020] NSWSC 607: see [8] and [59]. It seems that Ms Wooi continued to act, or resumed acting, as AB’s legal representative, and was named as a party (the fourth defendant) to the s 91 appeal. By order of the primary judge of 17 November 2020 Ms Wooi was removed as a party to the proceeding. She has indicated to the Legal Aid Commission that she is unable to accept any further application to represent AB. In her written submissions Ms Phillips has indicated that she is prepared to accept appointment as AB’s legal representative.

36. The order made by Slattery J joining AB as fifth defendant for the s 91 appeal was expressly made under UCPR 50.18(1b) which is relevantly in the following terms:

“(1)   The defendants in an appeal against a decision in respect of the care of a child are as follows –

(a)   if the Director-General is not the plaintiff, the Director-General,

(b)   if the child is at least 12 years of age and is not the plaintiff, the child,

… .”

37. Part 50 of the Rules is headed “Appeals to the Court”. Division 6, in which r 50.18 appears, is concerned with “Appeals to the District Court under s 91 of the [Care & Protection Act]”. Section 91 appeals from the Children’s Court are, unless the decision under appeal was the decision of the President, made to the District Court. By s 22A(2) of the Children’s Court Act 1987 (NSW) an appeal from a decision of the President is taken to be an appeal to the Supreme Court and, by cl 5(1)(a) of the Children’s Court Regulation 2019, is subject to any relevant rules of court applying to appeals to or refused by the Supreme Court.

38. By r 50.17 “Director-General” and “child” are given the same meanings as they are given in the Care & Protection Act. In the current version of the Care & Protection Act there is no position of “Director-General”. It may be supposed that references to the “Director-General” are to be taken as references to the “Secretary”.

39. It is also to be observed that r 50.18 identifies defendants “in an application against a decision in respect of the care of a child”. “Child” is defined in the Care & Protection Act as “a person who is under the age of 16 years”. There appears to be no equivalent provision in the rules in respect of “young persons”, who are defined as persons 16 years of age or above, but under 18 years of age.

40. At the time Slattery J joined AB as a defendant to the s 91 appeal AB was 15 years of age, and a child within the meaning of the Care & Protection Act, and therefore within r 50.18(1)(b). He is no longer. Rule 50.18 does not explicitly deal with the party status of “young persons”.

41. It may nevertheless be assumed that, as a defendant in the s 91 appeal, AB is properly made a party (respondent) to the present application for leave to appeal and any appeal for which leave might be granted.

42. What is not clear to me is the basis on which it is proposed that he be represented by “an independent legal representative”.

43. Section 98 of the Care & Protection Act gives the child or young person the subject of proceedings in the Children’s Court, any person having parental responsibility for that child or young person, the Secretary and the Minister, the right to appear in person or be legally represented in the Children’s Court. Subsection (2A) of s 98 authorises the Children’s Court, if of the opinion that a party to proceedings is incapable of adequately representing himself or herself, to appoint a guardian ad litem. Section 100 makes specific provision for the appointment by the Children’s Court of a guardian ad litem if of the opinion that there are special circumstances that warrant the appointment and the child or young person will benefit from the appointment. Section 99(1) authorises the Children’s Court to appoint a legal representative to act for a child or young person if it appears to the Children’s Court that the child or young person needs to be represented in any proceedings before it. Section 99A distinguishes between a “direct legal representative” and an “independent legal representative”. The distinguishing features are whether a child or young person is capable of giving proper instructions and whether a guardian ad litem has or has not been appointed. Section 99D spells out the respective roles of representatives of each of those classes.

44. The powers conferred by ss 98 and 99 are expressly conferred on the Children’s Court in respect of proceedings “before it”. There appears to be no provision conferring equivalent powers on this Court. If any exist, I was not referred to them.

45. It appears that judges of the Equity Division of the Supreme Court, who regularly deal with cases of child welfare and custody in the exercise of the parens patriae jurisdiction of the Supreme Court have, to some extent at least, borrowed from or adopted and adapted the procedures allowed by stature to the Children’s Court.

46. While it appears eminently sensible that AB, and this Court, be assisted by a separate legal representative for AB (whether direct or independent), I am not persuaded of the power to make such an order. Nor is there any application for such an order. All that is before me in this respect are the (very helpful) submissions made by Ms Phillips.

47. For the reasons give above I decline to make an order for the appointment of a tutor for AB. I leave open the question of the appointment of a legal representative or a guardian ad litem.

Order 11: facilitation of AB to all independent experts nominated by GR

48. It is not at all clear to me what is meant by this proposed order. In any event, there is no evidence upon which such an order could be made. I decline to make any such order.

49. The result is that GR’s notice of motion must be dismissed with costs.

50. GR also issued a subpoena, directed to a medical practitioner, requiring production of all BB’s medical records. She did not press for compliance with the subpoena.

1. The notice of motion filed by BB on 19 October 2021

51. The notice of motion filed by BB on 19 October 2021 contained nine paragraphs, of which five represented substantive orders sought. The first of those, seeking an order setting aside the subpoena issued by GR requiring production of his medical records was not pressed because GR did not press for compliance with the subpoena.

52. BB then sought orders:

• for a police check on GR;

• that GR disclose her source of funding “for her current Legal Team”; and

• that GR agree to counselling and treatment from a named medical practitioner.

53. None of these proposed orders is within the power or jurisdiction of this Court. BB filed two affidavits to which he annexed a variety of documents. The contents of the documents are troubling, but that does not invest the court with a power or jurisdiction that it does not have.

54. The final order sought by BB is that:

“Lawyer for the Appellant explains to the Court why he shouldn’t be held in Contempt of Court for wilfully not Serving me any document filed by the Appellant in this matter to this date and also is incomplete (and is defective) Subpoena for my Confidential Medical Records”.

55. The “lawyer” against whom the order is sought was not identified and there is no evidence that he (or she) has been served with notice of BB’s application. That is sufficient to dispose of that proposed order.

56. It follows that BB’s notice of motion must be dismissed.

57. The orders that I make are:

1. On the notice of motion filed by the first and second respondents on 5 October 2021:

(a)   the subpoena issued by GR on 27 September 2021 requiring Dr Akram Moussad to produce documents is set aside;

(b)   the subpoena issued by GR on 27 September 2021 requiring Ms Katherine Gordon of Impact Youth Services to produce documents is set aside;

(c)   the subpoena issued by GR on 27 September 2021 requiring the Proper Officer of John Hunter Hospital to produce documents is set aside;

(d)   the subpoena issued by GR on 30 September 2021 requiring the Proper Officer of John Hunter Hospital to produce documents is set aside;

(e)   the subpoena issued by GR on 27 September 2021 requiring the lawyer of the medico-legal department of the Sydney Children’s Hospital at Randwick to produce documents is set aside;

(f)   the subpoena issued by GR on 27 September 2021 requiring the lawyer of the medico-legal department of Westmead Children’s Hospital to produce documents is set aside.

1. The notice of motion filed by the applicant on 6 October 2021 is dismissed with costs.

2. The notice of motion filed by BB on 19 October 2021 is dismissed with costs.

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Decision last updated: 05 November 2021