GR v Secretary, Department of Communities and Justice

[2022] NSWSC 1029

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

GR v Secretary, Department of Communities and Justice [2022] NSWSC 1029

Hearing dates:

On the papers

Date of orders:

29 July 2022

Decision date:

03 August 2022

Jurisdiction:

Equity - Duty List

Before:

Meek J

Decision:

Decline to list matter for hearing.

Catchwords:

CIVIL PROCEDURE — hearings — duty list — frequent interlocutory applications invoking parens patriae jurisdiction — listing considerations – application for listing declined in context of applicant failing to adequately engage with existing regime for specified materials to be provided to enable consideration of leave for listing

UNREPRESENTED LITIGANTS — obligations to Court to assist with identifying relief and furthering the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings

CIVIL PROCEDURE — Registrars — lack of clarity regarding whether applicant seeking review of Registrar’s decision — failure to identify orders

REMOVAL TO COURT OF APPEAL — lack of background to enable proper consideration of request before the Court of Appeal

JUDGMENTS AND ORDERS — Statement of reasons for judgment — Duty to give reasons — Extent of duty — Manner of delivery

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 56

Children and Young Persons (Care and Protection) Act1998 (NSW), ss 9, 44, 79

Supreme Court Act 1970 (NSW), ss 51, 121

Uniform Civil Procedure Rules 2005 (NSW), rr 1.21, 49.19

Vexatious Proceedings Act2008 (NSW)

Cases Cited:

Apps v Pilet (1987) 11 NSWLR 350

Bauskis v Liew [2013] NSWCA 297

Challenge Bank Ltd v Raine & Horne Commercial Pty Ltd (1989) 17 NSWLR 297

Commonwealth Trading Bank v Inglis (1974) 131 CLR 311; [1974] HCA 17

Gibson v Director of Public Prosecutions (NSW) (No 2) (2021) 105 NSWLR 434; [2021] NSWCA 218

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

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

GR v Secretary, Department of Communities and Justice [2022] NSWCA 90

GR v Secretary, Department of Families, Disabilities and Community Services [2019] NSWCA 277

GR v Secretary, Department of Family and Community Services and Justice (No 3) [2020] NSWSC 259

GR v Secretary, Department of Family and Community Services and Justice [2020] NSWSC 348

Hamod v New South Wales [2011] NSWCA 375

Jones v Skyring [1992] HCA 39; (1992) 109 ALR 303

Lombardi v Rider [2021] FedCFamC2F 57; (2021) 64 Fam LR 103

Martin v Attorney-General (NSW) [2014] NSWCA 189

Minister for Immigration and Multicultural and Indigenous Affairs v WAKX (2005) 222 FCR 446; [2005] FCA 227

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

Z v Mental Health Review Tribunal (No 2) [2022] NSWCA 131

Category:

Procedural rulings

Parties:

GR (Plaintiff)
Secretary, Department of Communities and Justice (First Defendant)
Minister for Families, Communities and Disability Services (Second Defendant)
BB (Third Defendant)
AB (Fourth Defendant)

Representation:

Solicitors:
Self-Represented (Plaintiff)
Crown Solicitor’s Office (First and Second Defendants)
Legal Aid Commission of NSW (Fourth Defendant)

File Number(s):

2022/178932

JUDGMENT

1. HIS HONOUR: These proceedings were commenced by the plaintiff on 20 June 2022 invoking the parens patriae jurisdiction of the Court seeking a raft of orders in relation to a child who was born in 2004 and is currently 17.

2. In accordance with the usual practice of the Court that arises in protective and parental jurisdiction, the Court orders that the name of the child, the subject of the proceedings, not be published: see GR v Secretary, Department of Families, Disabilities and Community Services [2019] NSWCA 277 at [1] per Brereton JA (Emmett AJA agreeing).

3. Without any disrespect and for the purposes of consistency in the various reasons for judgement that have previously been published I will refer to the plaintiff as “GR”, the first defendant being the Secretary, Department of Communities and Justice (DCJ) as the “Secretary”, the second defendant who is the Minister for Families, Communities and Disability Services as the “Minister”, the third defendant who is the father of the child as “BB” and the fourth defendant the child as “AB”.

4. On Monday 25 July 2022, I commenced sitting as Duty Judge the Equity Division. As from Monday 1 August 2022 Lindsay J is rostered as Duty Judge.

5. On 26 July 2022, GR commenced a series of email correspondence with my Associate requesting a listing of these proceedings before myself as Duty Judge and providing various forms of notices of motion and a draft further amended notice of appeal.

6. Having regard to the procedural history of the matter, which I will outline below, orders of the Court which require GR to have leave to list, and delay in providing lack of clarification regarding relief being sought, I declined after 4PM on 29 July 2022 (the last weekday of my allocated time for sitting as Duty Judge) to list the matter as requested.

7. There is long-standing authority addressing the obligation to give reasons for judgment for decisions.

8. The extent of a judge's duty to state reasons for a decision is related to the function to be served by the giving of reasons, the nature of matter (including whether it relates to a matter of practice and procedure or discretionary decisions such as giving expedition), and the practical effect on the rights of the parties: see e.g. Apps v Pilet (1987) 11 NSWLR 350; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247.

9. When a decision is made, it is necessary that there be clarity as to when that occurs: Gibson v Director of Public Prosecutions (NSW) (No 2) (2021) 105 NSWLR 434; [2021] NSWCA 218 at [20].

10. Legislative provisions may permit judgments to be delivered other than in open court. However generally speaking formal judgments should be given in open court where it is practicable to do so: Gibson v Director of Public Prosecutions (NSW) (No 2) at [19] (Bell P); [47]-[53] (Basten JA); [64] (Meagher JA).

11. In this case I made a decision twice between 4 PM and 4:30 PM on 29 July 2022 to decline to list the matter.

12. These are the reasons for that determination.

Some background regarding GR and AB

13. AB has been diagnosed with autism spectrum disorder, avoidant/food intake restrictive disorder and juvenile idiopathic arthritis.

14. The manager and caseworker for AB is Ms Eldridge who is employed by DCJ within the metropolitan intensive support services (Metro ISS).

15. Details of AB's medical conditions and history of applications made by GR in relation to AB are recited in a number of judgments of this Court, including in the decision of Ward CJ in Eq (as her Honour then was): see GR v Secretary, Department of Communities and Justice [2020] NSWSC 739.

16. AB was first assumed into care by the Secretary pursuant to the provisions of s 44 Children and Young Persons (Care and Protection) Act1998 (NSW) (Care Act).

17. Parental responsibility has been allocated to the Minister pursuant to s 79(1)(b) of the Care Act.

18. Following a lengthy hearing in November 2019 and January 2020 in the Children's Court, further orders were made in relation to AB.

19. Since that time GR has filed numerous applications in relation to AB before the Court.

20. A measure of the extent of the litigation that has been embarked upon is indicated by the fact that since July 2019, by reference to the NSW Caselaw website, there are seemingly 27 published judgments in relation to various applications by GR and/or in connection with AB both before judges of this Court at first instance and the Court of Appeal.

21. The latest published reasons appear to be those of Brereton JA in GR v Secretary, Department of Communities and Justice [2022] NSWCA 90 on 9 June 2022.

Parens patriae jurisdiction

22. The extent of the parens patriae jurisdiction was considered by Lindsay J in GR v Secretary, Department of Communities and Justice [2020] NSWSC 892 at [23] to [32].

23. It is not necessary for present purposes to reflect on the nature of the substantive relief to be sought.

24. Nonetheless, because it is evident that some of the orders sought by GR relate to different aspects of the care jurisdiction of children, it is appropriate to note that it is generally necessary to distinguish between the various types of jurisdiction the Court exercises in relation to children, when the Court is asked to exercise jurisdiction regarding children: Re Rosie [2022] NSWSC 1001 at [13].

25. In particular, in respect of the jurisdiction of the Court exercises under the Care Act, the paramountcy principle set out in s 9(1) (that in any action or decision concerning a particular child or young person the safety, welfare and well-being of the child or young person are paramount), does not govern the exercise of the protective aspect of the Court’s parental jurisdiction: see Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206 at [39].

26. The parens patriae jurisdiction is an extraordinary jurisdiction, not to be exercised lightly, particularly where any exercise of it may or will have the effect of circumventing or interfering with matters that are being dealt with in a specialist jurisdiction such as the Children’s Court: GR v Secretary, Department of Family and Community Services and Justice (No 3) [2020] NSWSC 259 per Kunc J at [17(1)].

Listing considerations

27. The Court has guidelines regarding listing arrangements.

28. Many of the guidelines are set out in the various Practice Notes of the Court. Ultimately, listing arrangements are inherently within the discretion of the Court: e.g. Minister for Immigration and Multicultural and Indigenous Affairs v WAKX (2005) 222 FCR 446; [2005] FCA 227 at [28]-[32].

29. This includes questions as to (a) whether the matter is listed at all and when that occurs and (b) which list the matter is allocated to: e.g. Challenge Bank Ltd v Raine & Horne Commercial Pty Ltd (1989) 17 NSWLR 297 at 301-304.

30. Considerations regarding urgent listing before a duty judge include the basis for the urgency, potential prejudice arising from a failure to list, any issues of safety or risk, whether there has been any unreasonable or unexplained delay in approaching the Court, the relative urgency of the matter in light of other matters requiring the Court’s attention, the availability of a judicial officer to hear the matter and time and resources available to the judicial officer: see e.g. Lombardi v Rider [2021] FedCFamC2F 57; (2021) 64 Fam LR 103 per Alstergren CJ at [29]-[32]. Courts accord priority to cases depending on various considerations in each given case and by carefully weighing the competing considerations including those listed above: Lombardi v Rider at [32].

Commencement of these proceedings

31. On 20 June 2022, GR approached Kunc J for leave to abridge time for service of a proposed summons in these proceedings.

32. The summons in support of the present proceedings was supported by an affidavit of GR affirmed 20 June 2022.

33. The summons, apart from invoking parens patriae jurisdiction, seeks orders including:

1. that AB be transferred to [named] hospitals for urgent independent assessment and treatment of an alleged condition in consultation with [named medical professionals];

2. the treatment of AB with [specified]’s treatments be ceased forthwith and that AB be weaned off [specified medication] and (that) [specified treatment] for AB’s condition in consultation with [named medical professionals] be started forthwith;

3. the care order of the Children's Court of [date] be stayed;

4. that all treating doctors must seek consent for all treatments from GR as AB’s “legal guardian” and not from DCJ;

34. The summons also seeks other orders relating to AB’s care and further orders including orders restraining the Secretary and the Minister from commencing or continuing any further or new actions against AB, including their application to the Guardianship Tribunal for what is described as legal and financial guardianship and orders for transfer of AB’s medical care to a different hospital.

Procedural history regarding these proceedings

35. On 20 June 2022 Justice Kunc made the following orders:

“1.    Subject to Order 2, abridge the time for service of:

(a)    the Summons;

(b)    a copy of these Orders; and

(c)    any proposed interlocutory application and evidence in support,

on the first, second and third defendants to 6pm on 20 June 2022, such service to be effected by email on the third defendant and on the legal representatives of the first and second defendants who represented them in the recently concluded Court of Appeal proceedings.

2.    Note that in making Order 1 the Court is not to be taken to have granted leave to the plaintiff to file any such proposed interlocutory application and evidence in support.

3.    Until further order, neither the plaintiff nor the third defendant may make any urgent, interlocutory application to the Duty Judge in relation to the fourth defendant without the prior leave of the Duty Judge for the time being.

4.    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:

(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;

(c) a copy of the judgment of Kunc J of 18 March 2020 ([2020] NSWSC 457);

(d)    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 the urgency.

(e)    in the body of the email to the Associate to the Duty Judge seeking an urgent listing, it be noted that:

(i)    leave is required to make an urgent interlocutory application; and

(ii)    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 fourth defendant;

(f) a copy of the judgment of Robb J of 2 April 2020 ([2020] NSWSC 348); and

(g) a copy of the judgment of Ward CJ in Eq of 16 June 2020 ([2020] NSWSC 739).

5.    Vacate the listing of the Summons fixed for 18 July 2022.

6.    List the Summons for directions at 2pm on 21 June 2022 before the Equity Division Duty Judge.

7.    Direct these orders be entered forthwith.”

36. The application before Kunc J was ex parte.

37. The following day, on the return of the application there were appearances for the Secretary, BB, and by a representative from Legal Aid on the part of AB.

38. His Honour following a hearing made the following orders:

“1.    Dispenses with the requirement of a tutor for AB.

2.    Directs that Legal Aid take steps to appoint an independent legal representative for AB.

3.    All parties to these proceedings are released from their implied undertakings in relation any evidence that may have been filed or read in any earlier proceedings in this Court concerning the Fourth Defendant.

4.    The First and Second Defendants are to re-file in these proceedings the latest medical and other evidence concerning the Fourth Defendant that was before the Court of Appeal in the proceedings now reserved for judgment in the Court of Appeal on or before 24 June 2022.

5.    The Plaintiff is to file and serve any medical evidence concerning the Fourth Defendant on or before 29 July 2022.

6.    List the proceedings for further directions before the Equity Registrar on 3 August 2022.

7.    In relation to the working out of these orders, there is liberty to any party to apply on 3 days’ notice to the Registrar, including for the avoidance of doubt the independent legal representative who will be appointed for the Fourth Defendant.”

39. Commencing from the following day 22 June 2022, it is evident from the Court file that GR corresponded with the Associate to Kunc J seeking various orders on an urgent basis and citing at least in one instance the fact that the Registrar would not make any urgent orders.

40. That correspondence continued at least until 29 June 2022.

41. On 6 July 2022, GR emailed the Registrar referring to the orders of Kunc J on 21 June 2022 seeking inter alia that the Registrar provide a sealed subpoena with leave for short service by email and a request that the matter be listed urgently by phone for alleged lack of compliance by what was described as “lack of compliance by FACS to repeated requests from Court of Appeal since 6 May and Equity since 21 June to comply with independent medical assessment of [AB]".

Context of order requiring leave

42. It will be readily observed that order 3 of the orders made by Kunc J on 20 June precludes GR from making any urgent, interlocutory application to the Duty Judge in relation to AB without the prior leave of the Duty Judge for the time being.

43. Order 4 made by Kunc J on that occasion provides a structure and procedural guide for how any such application may be made by GR.

44. The necessity for GR to obtain a grant of leave for any proposed urgent interlocutory application to the Duty Judge at first blush appears exceptional.

45. However, it arises from a background in which by early 2020 GR, generally supported by BB, had developed a pattern of making frequent, informal and obviously unmeritorious applications to the Duty Judge for the time being, generally by email to the Duty Judge’s Associate, including immediately before or during weekends, leading Kunc J to give consideration to ensuring that this Court’s own process were not being abused: GR v Secretary, Department of Family and Community Services and Justice (No 3) [2020] NSWSC 259 at [17(2)], [19].

46. Kunc J made orders requiring leave.

47. His Honour expressly did not make orders pursuant to the Vexatious Proceedings Act 2008 (NSW).

48. Rather, the jurisdiction exercised by the Court sits within its inherent jurisdiction of the Court to restrain a person from making unwarranted and vexatious applications in pending proceedings: see GR v Secretary, Department of Communities and Justice [2020] NSWSC 892 at [16] citing Commonwealth Trading Bank v Inglis (1974) 131 CLR 311 at 318-320; [1974] HCA 17; see also Jones v Skyring [1992] HCA 39; (1992) 109 ALR 303 at 311; Martin v Attorney-General (NSW) [2014] NSWCA 189.

49. The orders of Kunc J were varied by Robb J on 2 April 2020 (GR v Secretary, Department of Family and Community Services and Justice [2020] NSWSC 348) and further varied by Ward CJ in Eq on 16 June 2020: GR v Secretary, Department of Communities and Justice [2020] NSWSC 739.

Recent email correspondence from GR

50. On 26 July 2022, GR emailed my Associate in the following terms:

"Dear Associate,

I seek to vary orders 5, 6 and 7 of 21 June, because Registrar Leonie Walton replied 6 times that "it's not her job" to relist or issue subpoenas, and facs hasn't complied with presenting [AB] for independent medical assessment as booked by me in appointments near his placement 5 times

There is no utility in listing anything before the Registrar on 3 August or the order to relist before Registrar by liberty to apply

I request your Associate seals the subpoenas in Chambers today, previously Associates to Ward CJ, Slattery J and Sackar J issued subpoenas in this matter in Chambers

I can appear at any hearing by phone at a minimum half hour's notice

Duty Justices Slattery and Black refused to list because I didn't have any medical report

Kind regards,

[GR]”

51. On 27 July 2022 a series of correspondence occurred as follows, initiated by, GR:

1. at 11:16 AM GR sent a further email to my Associate:

“Dear Associate,

I seek to list this matter on the Duty List today, to vary orders 5, 6 and 7 of Kunc J of 21 June, as Registrar Leonie Walton replied 6 times that "it's not her job to relist or issue subpoenas", to invoke the parens patriae jurisdiction and make urgent protective orders as [AB] is being subjected to involuntary incorrect extraordinary medical treatments under voluntary consent of FACS, and being forcibly moved to a shared lockup disability hostel against his strong objections and strong wishes to return home to my care, and to stay legal and financial guardianship orders FACS forced in guardianship tribunal on 20 July without serving the parents the applications or any supporting documents.

Facs have refused to comply with presenting [AB] for independent medical assessment in 5 appointments in [location] near his placement, as requested by Kunc J on 21 June, instead they force involuntary "special medical treatments" pursuant to s175 of the Care Act.

Please reply this morning, I will email a proposed NOM and affidavit

Kind regards,

[GR]”

2. at 12:57 PM my Associate received a further email attaching a proposed notice of motion seeking extensive orders.

3. at 1:23 PM, GR sent my Associate a further email attaching an amended notice of motion in the following terms:

“Dear Associate,

Please see attached my amended NOM. I request it be heard anytime this week except 12 to 2pm tomorrow, and request leave to appear by phone. I request it be heard by Duty Judge or Justice Kunc, whose orders of 21 June are in breach, and need to be varied. I will email an affidavit before the hearing

Kind regards,

[GR], plaintiff”

4. at 1:17 PM my Associate sent an email to GR (copied to the other representatives) in the following terms:

"This email is sent on behalf of his Honour

Dear [GR],

His Honour notes the orders made by Justice Kunc on 20 and 21 June 2022.

Pursuant to the orders made by Justice Kunc on 20 June 2022 leave is required before you may make any urgent interlocutory application in relation to the fourth defendant: order 3.

Any such application for leave must comply with the requirements specified in order 4(a)-(g).

The matter will not be listed until all documents meeting the specifications in order 4(a)-(g) have been provided to myself as the Associate and copied to the other parties.

Upon receipt of any such documents, his Honour will consider what, if any leave may be given and what, if any, listing will be made.

Kind regards”

5. at 4:47PM, GR sent my Associate a further email attaching an draft notice of appeal in the following terms:

“Dear Associate,

The specific question of law and fact I seek referral to Court of Appeal on pursuant to UCPR r 1.21, is whether NCAT had jurisdiction to make orders for legal and financial guardianship on 20 July, despite being informed that Court of Appeal was reserved on my application for legal and financial guardianship since 15 June (orders 2 and 10 of my notice of appeal attached), in the absence of joining all interested parties including the parents and without serving the applications and supporting documents to any interested parties or parents.

The specific question of facts I request referral to Court of Appeal on, are:

(1) whether Miss Amy Eldridge established on the basis of her untested and unserved evidence that [AB] lacks mental capacity to make his own decisions, and 

(2)whether ncat could make that finding while [AB] is on a number of extraordinary involuntary medications including a maximum adult dose of Prozac for depression from abuse and prolonged incarceration by FACS, while he is held prisoner of FACS and severely bullied about what he can and can't say ( not allowed to mention home or his mother) and diagnosed with PTSD from severe abuse by FACS

(3) whether ncat could make a finding that [AB] is mentally unfit to make his own decisions when he communicated clear and appropriate answers to all their questions despite involuntary medication with Prozac and other drugs, and despite severe bullying by FACS 

(4) whether ncat and [AB’s] legal aid appointed ILR was entitled to make recommendations and decisions contrary to [AB’s] clearly stated wish to be in the care and guardianship of his relatives, meaning me and my Uncle

I believe the restraints of 20 June don't apply to a referral pursuant to UCPR r 1.21 to Court of Appeal or to breach of the Court's orders, and are not in [AB’s] best interests while he needs urgent relief from involuntary extraordinary medical treatments and severe abuse by FACS, however I will email the judgments soon I request it be listed this week.

Kind regards,

[GR]”

6. at 5:13 PM, GR sent my Associate a further email attaching copies of 3 judgments in the following terms:

“Dear Associate,

Please see attached the 3 judgments referred to in the restraints. On 17 June current CJ Hammerschlag found that the restraints/ inhibitions do not apply to the new Summons.

I will amend the NOM to seek an order to remove the restraints

I seek referral to Court of Appeal pursuant to UCPR r 1.21 on a further question of fact: (5) whether it's in [AB’s] best interests to remain a ward of the state beyond age 18, in circumstances where he has diagnosed brain damage from [specified] injections without psychosis under voluntary consent of FACS, and diagnosed PTSD from incarceration in locked mental wards without mental illness for 17 months under voluntary consent of FACS, where he was subjected to [alleged involuntary treatments and restraints] for refusal to eat hospital food with no choice under voluntary consent of FACS, while his mother and uncle are willing and able to care for him in his own home as he strongly desires

I will email an affidavit once the matter is listed, with leave for me to appear by phone

Kind regards,

[GR]”

52. On 28 July 2022, the following email correspondence occurred:

1. at 9:53 AM my Associate sent an email to GR (copied to the other representatives) in the following terms:

“Dear [GR],  

His Honour notes your emails of yesterday in which you have provided a form of notice of motion (email 12:57PM), form of amended notice of motion (email 1:23PM), a form of further amended draft notice of appeal (4:47PM) and foreshadowed a further amended notice of motion (5:13PM).  

It is unclear what process you currently seek to be listed and what urgency attaches to the request for listing in circumstances in which the matter is listed for further mention before the Registrar on 3 August 2022.  

No consideration will be given to listing of the matter until you identify what precise application you seek to be listed and comply with the requirements for leave specified in order 4(a)-(g) in the event that the application you seek to have listed requires leave.  

You have in your email below asserted that "On 17 June current CJ Hammerschlag found that the restraints/ inhibitions do not apply to the new Summons".

There is no such determination on the above-mentioned Court file for proceedings (2022/0017 8932), which proceedings were commenced by you after that date on 20 June 2022. Please specify what determination of Hammerschlag CJ in Eq you are referring to”.

2. at 9:57 AM, GR sent my Associate an email in the following terms:

“Dear Associate,

Thank you for your email, I will reply later today.

Kind regards, [GR]”.

53. On 29 July 2022, as at 4PM, the last weekday of my sitting as the Duty Judge week no such reply had been received from GR.

54. The following email correspondence then took place:

1. at 4:08 PM my Associate sent an email to GR (copied to the other representatives) in the following terms:

“This email is sent on behalf of his Honour

Dear [GR] and Practitioners,

His Honour notes the email sent to myself as Associate at 9:57am yesterday:

“Thank you for your email, I will reply later today.”

To date, no such reply has been received by me.

Noting the time that has passed, and that as of Monday 1 August another judge of the Equity Division will be Duty Judge, his Honour declines to list the matter before himself as Duty Judge. His Honour will provide reasons for that determination.

Kind regards”.

2. at 4:15 PM GR sent my Associate an email in the following terms:

“Dear Associate,

I apologise, I got busy assisting law in order full time to prepare court books in my other cases. I seek to vary the orders of Kunc J of 21 June, as the Registrar refused to list on liberty to apply, replying 5 times that "it's not her job", to:

(1) vacate the 3 August hearing before the Registrar, 

(2) to remove the liberty to apply before Registrar, and replace with liberty to apply before Duty Justice, and 

(3) to extend time for me to provide a medical report. 

(4) Enforcement orders are required, as FACS hasn't complied with presenting [AB] for independent medical assessment in locations near his placement 5 times, and refused to provide any recent medical evidence.

Kind regards

[GR]”

3. at 4:23 PM my Associate sent an email to GR (copied to the other representatives) in the following terms:

“This email is sent on behalf of his Honour

Dear [GR],

His Honour has considered your email.

His Honour declines to list the matter and will provide reasons for the determination.

Kind regards”

Determination

55. How the Court deals with an application for leave for listing where particular case management orders have required a threshold of material to be considered by the Court before listing will be granted, will depend upon the circumstances of each individual application. Sometimes, it might be possible, if not practical, to determine the application for leave without engaging prospective respondents in the process, other times respondents may need to be engaged: GR v Secretary, Department of Communities and Justice [2020] NSWSC 892 at [16].

56. In the circumstances of this matter, beyond ensuring the other defendants were copied into the email correspondence, I did not consider it appropriate to specifically engage the other defendants in order to deal with the requests of GR.

Initial request

57. The initial proposal by GR (26 July 2022) involved a variation of the following orders:

“5.    The Plaintiff is to file and serve any medical evidence concerning the Fourth Defendant on or before 29 July 2022.

6.    List the proceedings for further directions before the Equity Registrar on 3 August 2022.

7.    In relation to the working out of these orders, there is liberty to any party to apply on 3 days’ notice to the Registrar, including for the avoidance of doubt the independent legal representative who will be appointed for the Fourth Defendant.”

58. The reason for the variation both in the email dated 26 July 2022 and the email correspondence on 27 July 2022 (11:16 AM) was allegedly because the Registrar had allegedly corresponded with GR declining to relist the matter or issue subpoenas and because “facs” (presumably the Minister) had not complied with presenting AB for independent medical assessment.

59. The 26 July 2022 email also requested that my Associate seal “the subpoenas”.

60. The nature of the request was unclear and in particular whether what was being sought was a review of an order or series of orders made by the Registrar.

61. The jurisdiction to review a registrar’s decision arises pursuant to s 121(3) of the Supreme Court Act 1970 (NSW) together with Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 49.19(1). The power is discretionary: see e.g. Z v Mental Health Review Tribunal (No 2) [2022] NSWCA 131 at [51]-[52].

62. The orders were not identified. The subpoenas were not identified.

63. The request was unaccompanied by any evidentiary material.

Escalating requests for relief

64. Very quickly following the 11:16 AM email, the nature of the request varied, with GR sending an email attaching a proposed notice of motion (12:57 PM) and then an amended formal notice of motion (11:23 PM).

65. The amended notice of motion sought relief as follows:

“1    This Notice of Motion is to be returnable instanter, and is to be heard by the Honourable Duty Judge in Equity, or by Justice Kunc, whose orders of 21 June are in breach by the 1^st and 2^nd defendants

2    Invoke the parens patriae jurisdiction

3    Order transfer of [AB] by ambulance forthwith to [named hospitals] for urgent assessment and treatment of [alleged condition], [specified] and review of current and recent medications and treatments

4    Order that all consents for all medications, medical treatments and investigations must be by [AB’s] mother only, [GR], forthwith

5    Order that [AB’s] mother be allowed to room in with [AB] and have unrestricted access to examine [AB’s] hospital records and communicate with his doctors

6    Grant leave to subpoena [hospitals and names specified] for up-to-date records

7    Grant leave to subpoena experts [medical professionals named] and other experts as nominated by the plaintiff to give evidence 8 A contact order pursuant to s 86 (1)(a) of the Care Act, for daily zoom video calls of one hour twice daily and full day in person visits from 3 to 7 days a week

9    Order that all [name] medications and treatments be ceased forthwith including [medications named] and wean off [medications]

10    Order that [AB] be placed in his own home in his mother’s care as soon as treatments as in (3) are commenced, to continue treatments from the [named hospital] from his own home under consent of his mother

11    Stay the legal and financial guardianship orders of NCAT of 27 July 2022

12 Vary orders 5, 6 and 7 of Kunc J of 21 June 2022 pursuant to UCPR r36.16 (2), (3) and (4) and 36.15 (1)

13 Refer [name] of DCJ Parramatta to the Attorney General for prosecution for contempt of court pursuant to part 55 of Supreme Court Rules 1970, for telephone harassment of [name] and the plaintiff, verbal and physical assault of [AB], prolonged emotional and psychological abuse of [AB], forced free child labour of [AB] in demeaning tasks on farms, breach of compulsory education requirements, theft of NDIS and Centrelink funding obtained in [AB’s] name without legal or financial guardianship, and theft of all gifts sent to [AB] by the plaintiff

14 Remove the Summons and NOM to Court of Appeal if the relief sought isn’t granted this week, pursuant to UCPR r 1.21

15 Gross sum costs order for this application pursuant to s98(4)(c) of the Civil Procedure Act 2005”.

66. It is apparent that the relief sought in the notice of motion goes well beyond the variation of orders 5-7 made by Kunc J on 21 June 2022 and seeks substantive relief, in accordance some of the claims for relief in the summons, and in fact extending beyond the relief in the summons.

67. The approach of the Court in assisting an unrepresented litigant is properly understood and to be considered in the context of the Court’s obligation to ensure a fair trial according to law for all of the parties in the proceedings.

68. In Bauskis v Liew [2013] NSWCA 297 Gleeson JA (Beazley P and Barrett JA agreeing) addressed the question of the Court's duty to unrepresented litigants in the context of procedural fairness. His Honour referring to the decision of Beazley JA (as her Honour then was) in Hamod v New South Wales [2011] NSWCA 375 at [309]–[316].

69. A party to civil proceedings is under a duty to assist the Court to further the overriding purpose, to facilitate the just, quick and cheap resolution of the real issues in the proceedings, and, to that effect, to participate in the processes of the court and to comply with directions and orders of the Court: s 56(1) and (3) Civil Procedure Act 2005 (NSW).

70. The statutory obligation of a party to assist the Court to facilitate the just, quick and cheap resolution of the real issues in the proceedings extends to litigants in person.

71. For the following reasons I declined to list the matter.

72. First, in light of the statutory obligation that I have referred to that a party to civil proceedings is under a duty to assist the Court to further the overriding purpose, it is incumbent upon an applicant to clearly identify what relief is actually being sought. It becomes very practically difficult for the Court to give proper consideration to the listing of a matter, where there is an order requiring leave for listing, in circumstances where email correspondence rapidly proposes new relief and foreshadows the prospect of changing relief.

73. The final actual document provided at 27 July 2022 (4:47 PM) was a form of “Further Amended Draft Notice of Appeal”.

74. The relief sought in the document is as follows:

“1 This appeal is brought pursuant to s 101(1)(a) of the Supreme Court Act 1970, allows an appeal to the Court of Appeal from any judgment of the Court in a Division

2 Concurrent hearing for leave to appeal and appeal, pursuant to s 101(2)(r) of the Supreme Court Act 1970, was expedited on 28 September 2021

3 Pursuant to s 75A (5) of the Supreme Court Act 1970, the appeal shall be by way of rehearing

4 Pursuant to s 75A (7), (8) and (9) of the Supreme Court Act 1970, grant leave to adduce new evidence

5    The appellant seeks leave to challenge the Deprivation of Liberty of her son, [AB], and seek a prompt decision pursuant to Article 37 of the United Nations Convention on the Rights of the Child

6    The appellant seeks an extension of time in so far as it is required

7 Pursuant to s 75A (10) of the Supreme Court Act 1970, the appellant seeks to set aside the whole decision of the court below and seeks substituted judgment in this Court, to set aside the final care order of the Children’s Court of 3 April 2020 and to restore AB to his own home in the sole care, legal and financial guardianship of the appellant

8    The appellant seeks that the relief sought in [7] be granted by the end of the two-day hearing, or in the alternative, a stay of execution of the orders of the Supreme Court of 27 August 2021 and of the Children’s Court of 3 April 2020, and a recovery order of AB to the appellant

9    The appellant seeks a declaration that the proceedings 201X / XXXXX X are Void Ab Initio

10    The appellant seeks an order to dismiss Children’s Court proceedings 201X / XXXXX X

11    The appellant seeks an order in the nature of an injunction, restraining the 1st and 2nd respondents and their delegates from taking any further or new actions against the appellant or her son [AB], including their unserved application to NCAT for legal and financial guardianship of [AB] until age 25

12    The Court makes a finding that the incarceration and medical treatments AB was subjected to since 28 June 2018 under voluntary consent of the 1st and 2nd respondents were without jurisdiction, without legal consent, without medical indication and without approval for use at [AB’s] age for his refusal to eat in the care of the 1st respondent, being “special medical treatments” pursuant to s175 of the Care Act

13    The Court grants leave to a joinder of the applicant’s mother and maternal uncle to the appeal as interested parties, and grants leave for them to be represented by the same lawyer and counsel as the applicant, as seeking the same orders as the applicant

14    The Court awards costs and damages against the 1st and 2nd respondents for the applicant and her son [AB]”.

75. It is far from clear why such a document was provided to myself as Duty Judge. The covering email 27 July 2022 (4:47 PM) and further email (5:13 PM) sought a referral to the Court of Appeal pursuant to r 1.21 UCPR, on questions of fact and law. In particular the email of 5:13 PM foreshadowed an amendment to the earlier form of notice of motion.

76. UCPR r 1.21 provides as follows:

“(1)    The Supreme Court in a Division may, in relation to proceedings commenced in the Division, make an order that the proceedings be removed into the Court of Appeal—

(a)    if it makes an order under rule 28.2 for the decision of a question of law, or

(b)    if, having stated the question to be decided or determined, it is satisfied that special circumstances exist that render it desirable to make an order for their removal into the Court of Appeal”.

77. An order removing proceedings to the Court of Appeal can also be made where proceedings are properly assigned to the Court of Appeal and where “special circumstances” apply to appeal or stated case proceedings authorised by specific statutory provisions: see Supreme Court Act s 51(1) and (5).

78. None of the emails provided me with any context regarding the background or reasons as to why a “Further Amended Draft Notice of Appeal” was being provided to me.

79. A party to legal proceedings, including an unrepresented litigant, ought to assist the Court in clearly identifying the nature of relief and not leave the Court to sift through rapidly changing forms of application.

77. That assistance was not provided to me by GR in the emails either in relation to the relief sought in respect of the notice of motion and the further amended draft notice of appeal.

78. It is for that reason that I requested GR’s assistance to be precise about the relief that was being sought. There was significant delay in answer to that request and a response was only provided after usual Court hearing hours (4PM) had completed on the last weekday of my sitting as Duty Judge.

79. Whilst a Duty Judge may well be called upon to sit outside usual Court hearing hours, the necessity to do so will be informed by the circumstances of the matter including relative urgency of the relief being sought, any delay in approaching the Court.

80. The response of GR at 4:15 PM, revealed that GR had allegedly become diverted by other matters “I got busy assisting law in order full time to prepare court books in my other cases” and further sought to seek not only relief in respect of variation of orders of Kunc J, but raise the prospect of dissatisfaction with orders of the Registrar and also the prospect of relief relating to AB.

81. The reason for delay whilst disclosed did not reveal a basis as to why the Court should immediately respond to timing of GR.

82. Further, orders removing proceedings to the Court of Appeal are discretionary and made having regard to the jurisdictional basis I have identified above.

83. Whilst in some cases the criteria may not be onerous, at least one purpose of the discretion is to enable a primary judge to properly filter what applications are to be removed to the Court of Appeal. At the very least, to enable that consideration to be made an applicant ought to provide the primary judge, and in particular a Duty Judge, with assistance to enable the discretion to be properly exercised. That assistance was not provided.

84. Secondly, it is evident from the content of the emails and amended formal notice of motion that the relief sought potentially included relief relating to AB. Such relief under the existing orders of Kunc J required the material referred to in order 4 of the orders made on 21 June 2022. Whilst eventually copies of judgments were provided, not all the specified material was provided. Details as to upcoming listings relating to AB were not provided.

85. Thirdly, the application was not supported by any evidence. Indeed, GR in the email at 5:13 PM on 27 July 2022 indicated that an affidavit would be emailed “once the matter is listed”. That indication subverts the orders of Kunc J which requires provision of an affidavit prior to the listing of the matter in order to assist whichever judge is then the current Duty Judge in giving consideration to the listing. The various forms of application sought at least some relief in relation to AB, and yet no medical evidence was provided.

86. Fourthly, related to the necessity for the provision of an affidavit is in the context of a Duty List, order 4 of the orders made by Kunc J on 20 June 2021, provided that the affidavit evidence proposed to be relied upon include any evidence as to urgency. No such evidence was provided.

87. For the above reasons the applications for listing were declined.

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Amendments

03 August 2022 - Coversheet amended

Decision last updated: 03 August 2022