GR v Secretary, Department of Communities and Justice

[2021] NSWCA 52

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

GR v Secretary, Department of Communities and Justice [2021] NSWCA 52

Hearing dates:

29 March 2021

Date of orders:

6 April 2021

Decision date:

06 April 2021

Before:

Meagher JA

Decision:

(1)   Direct the hearing of the summons for leave to appeal filed 23 March 2021 be expedited.

(2)   Otherwise dismiss the application for the orders sought in paragraphs 1 and 2 of the motion.

(3)   Dismiss the application for the order sought in paragraph 3 of the motion.

(4)   Dismiss the application for the order sought in paragraph 4 of the motion.

(5)   Order the applicant pay the first and second respondents’ costs of the motion.

(6)   List the application for leave for directions before the Registrar at 9:45am on Wednesday 7 April 2021.

Catchwords:

CIVIL PROCEDURE — Court of Appeal — leave to appeal — application for concurrent hearing of leave application and appeal — application for expedited hearing — no issue of principle

CIVIL PROCEDURE — Court of Appeal — application for stay of care orders made by Children's Court pending determination of appeal proceedings — no issue of principle

CIVIL PROCEDURE — Court of Appeal — application to set aside order appointing guardian ad litem — no issue of principle

Legislation Cited:

Children and Young Persons (Care and Protection Act) 1998 (NSW), ss 79, 91, 100

Children’s Court Act 1987 (NSW), s 22A

Supreme Court Act 1970 (NSW), s 69

Uniform Civil Procedure Rules 2005 (NSW), rules 36.16, 51.14

Cases Cited:

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

GR v Secretary, Department of Families, Disabilities and Community Services (No 2) [2020] NSWCA 198

Category:

Procedural rulings

Parties:

GR (applicant)
Secretary, Department of Communities and Justice (first respondent)
The Minister, Families, Disabilities and Community Services (second respondent)
BB (the father) (third respondent)
Krstina Wooi (fourth respondent)

Representation:

Counsel:
Applicant self-represented
Mr M Anderson (first and second respondents)
Third respondent self-represented
Ms E Stolier (fourth respondent)

Solicitors:
Crown Solicitor (first and second respondents)

File Number(s):

2020/359409

Publication restriction:

Restriction of publication of anything that might identify the child

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Equity Division

Citation:

[2020] NSWSC 1622; [2020] NSWSC 1901

Date of Decision:

17 November 2020

Before:

Sackar J

File Number(s):

2020/123080

Judgment

1. By summons filed 23 March 2021 GR seeks leave to appeal from orders made by Sackar J on 17 November 2020 and on 23 December 2020. Although these orders were made in proceeding 2020/123080 they relate to separate applications made in that proceeding.

2. The history of GR’s litigation in relation to the medical care of her teenage son, AB, in respect of whom final care orders have been made by the President of the Children’s Court, is fully described by Ward CJ in Eq in GR v Secretary, Department of Communities and Justice [2020] NSWSC 739 at [16]-[116]. Her Honour’s reasons record the position up to the beginning of June 2020. Thereafter there were further applications in the Equity Division and in this Court as explained in the reasons of Basten and McCallum JJA in GR v Secretary, Department of Families, Disabilities and Community Services (No 2) [2020] NSWCA 198 at [17]-[18].

3. By that judgment GR was refused leave to appeal from interlocutory orders made by three judges of the Equity Division, each dismissing her variously framed applications to have AB released to her care, or for a stay of the final care orders made on 3 April 2020. With respect to those orders as sought by GR, their Honours concluded at [20]:

There was no basis upon which the orders sought in the Equity Division could properly have been made. There is a repetitive quality to those orders as sought in numerous applications in the Equity Division and from judges of this Court in relation to pending appeals. As noted above, they are either in the form of a request for final relief, or seek orders which are inconsistent with the status quo. The final orders made in the Children’s Court must stand until they are varied on appeal, or on further application to the Children’s Court based on a material change in circumstances.

4. Returning to the applications in relation to which the orders that are the subject of GR’s leave application were made, the first was brought by a “Summons Commencing an Appeal (Part 50)” filed by GR in proceeding 2019/62836 on 24 April 2020. The applications made in proceeding 2019/62836 (which invoked the parens patriae jurisdiction) are summarised by Ward CJ in Eq at [29]-[116]. Because the summons filed on 24 April 2020 sought to appeal the final care orders (see Children and Young Persons (Care and Protection Act) 1998 (NSW), s 91 (Care Act)), it was allocated a new proceeding number 2020/123080. That appeal was properly brought in the Supreme Court because it was from orders of the President of the Children’s Court who was also a judge of the District Court: see Children’s Court Act 1987 (NSW), s 22A(2). That appeal is currently fixed for hearing in July of this year.

5. The second application was brought by an “Amended Summons (Judicial Review)” filed on 1 September 2020 in proceeding 2020/123080. That summons sought relief under Supreme Court Act 1970 (NSW), s 69 setting aside the final care orders made on 3 April 2020.

6. Sackar J dismissed GR’s application under s 69 on 23 December 2020: GR v Department of Communities & Justice [2020] NSWSC 1901. Having rejected each of GR’s grounds for that relief, his Honour rightly pointed out that the challenges made to the correctness of the Children’s Court decision were “more appropriately addressed in the [yet to be determined] statutory appeal proceedings”. The 23 December 2020 order dismissing the amended summons for judicial review is the second of the two orders from which GR seeks leave to appeal.

7. The first orders sought to be appealed were made on 17 November 2020, following his Honour’s reasons for judgment delivered on the previous day: GR v Department of Communities & Justice [2020] NSWSC 1622. That judgment dealt with GR’s application for the removal of Ms Wooi as AB’s independent legal representative in the appeal from the Children’s Court. In the course of the argument of that application Sackar J proposed the appointment under Care Act, s 100(1) of a guardian ad litem for AB. GR opposed the making of such an order.

8. On 17 November 2020 an order was made dismissing GR’s application. A further order was made appointing a guardian ad litem for AB, although no person appears to have been named or appointed. These orders (incorrectly described in the summons as being made on 16 November 2020) are the first of the orders against which GR seeks leave to appeal.

9. Returning to the motion before the Court, GR seeks the following orders:

1. Grant concurrent hearing of the Summons for Leave to Appeal and Appeal

2. Expedite the concurrent hearing as in (1)

3. Stay the final care orders of 3 April 2020 in Children’s Court Proceedings 2018/00203310 pending final determination of this Appeal

4. Set aside orders of the Court below of 16 November 2020 pursuant to UCPR r 36.16(1), before entry of the judgment

5. Costs for this application

10. In my view there should not be a concurrent hearing in respect of the two matters that are the subject of GR’s application. Each is capable of being disposed of without the need for any detailed consideration of arguments to be made in any appeal. However the hearing of the leave applications should be expedited so that they are heard before the end of May, and well before the appeal fixed for hearing in July.

11. Accordingly I decline to make orders 1 and 2 as sought. However I will direct that the hearing of GR’s summons for leave be expedited. To enable that to occur the summons will be listed before the Registrar for directions and to fix a hearing date.

12. GR’s application for a stay of the final care orders pending the determination of the appeal is refused for the same reasons as were given by Basten and McCallum JJA. In support of that application, GR tendered a number of medical reports, not all of which were before the Children’s Court. However all were before Basten and McCallum JJA. As their Honours also observed (at [16]), a stay of the final orders of the Children’s Court would in any event be futile because they would leave the position as it existed on an interim basis which would achieve no substantial change in the involvement of GR and her husband in the care of AB, or return him to their custody.

13. Order 4 seeks to set aside the interlocutory orders made by Sackar J on 17 November 2020. Those orders are the subject of the application for leave to appeal. The application to set aside those orders on appeal cannot be dealt with on this application.

14. As GR has failed to obtain any of the orders sought by her motion, she should pay the costs of the first and second respondents.

Conclusion

15. I make the following orders in relation to GR’s notice of motion filed 23 March 2021:

1. Direct the hearing of the summons for leave to appeal filed 23 March 2021 be expedited.

2. Otherwise dismiss the application for the orders sought in paragraphs 1 and 2 of the motion.

3. Dismiss the application for the order sought in paragraph 3 of the motion.

4. Dismiss the application for the order sought in paragraph 4 of the motion.

5. Order the applicant pay the first and second respondents’ costs of the motion.

6. List the application for leave for directions before the Registrar at 9:45am on Wednesday 7 April 2021.

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Amendments

08 April 2021 - Fourth paragraph first sentence, "are made" changed to "were made". Catchwords amended.

Decision last updated: 08 April 2021