GR v Secretary, Department of Communities and Justice; GR v Public Guardian

[2023] NSWSC 525

Supreme Court

New South Wales

Medium Neutral Citation:

GR v Secretary, Department of Communities and Justice; GR v Public Guardian [2023] NSWSC 525

Hearing dates:

19 May 2023

Date of orders:

19 May 2023

Decision date:

19 May 2023

Jurisdiction:

Equity - Duty List

Before:

Hammerschlag CJ in Eq

Decision:

Proceedings dismissed with costs. See [19]-[20]

Catchwords:

PRACTICE AND PROCEDURE — application to summarily dismiss proceedings where plaintiff is seeking relief from appeal proceedings in the Civil and Administrative Tribunal of New South Wales (the Tribunal) — where plaintiff has not availed herself of available rights of appeal from the Tribunal — where the plaintiff has commenced two sets of proceedings in this Court, seeking, in effect, the same relief, making serious allegations, including of physical and chemical abuse, forced labour, force feeding and mechanical restraint — HELD — proceedings should be dismissed as an abuse of process

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Guardianship Act 1987 (NSW)

Supreme Court Act 1970 (NSW)

Cases Cited:

GR v Secretary, Department of Communities and Justice [2022] NSWCA 153

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

Category:

Principal judgment

Parties:

Proceedings 2022/00332885
GR (Plaintiff)
Secretary, Department of Communities and Justice (First Defendant)
AB (Second Defendant)
NSW Trustee & Guardian (Third Defendant)
Civil and Administrative Tribunal of New South Wales (Fourth Defendant) (Submitting appearance)
Public Guardian (Fifth Defendant)

Proceedings 2023/00055012
GR (Plaintiff)
Public Guardian (First Defendant)
NSW Trustee & Guardian (Second Defendant)
Department of Communities & Justice (Third Defendant)
Westmead Children’s Hospital (Fourth Defendant)
Impact Youth Services Pty Ltd (Fifth Defendant)

Representation:

Counsel:

Proceedings 2022/00332885
GR (Self-Represented) (Plaintiff)
J Gardiner (Solicitor) (Third Defendant)
M Higgins (Fifth Defendant)

Proceedings 2023/00055012
GR (Self-Represented) (Plaintiff)
M Higgins (First to Fourth Defendant)

Solicitors:

Proceedings 2022/00332885
Dr K Johnson (Guardian ad Litem) (Second Defendant)
Crown Solicitor’s Office (Fourth Defendant)

Proceedings 2023/00055012
Crown Solicitor’s Office (First to Fourth Defendant)

File Number(s):

2022/00332885
2023/00055012

EX-TEMPORE JUDGMENT (REVISED and anonymised)

1. Before the Court is yet more litigation concerning AB, the child of GR. [1] AB turned 18 years old on 27 October 2022.

   1. See, eg, GR v The Department of Communities & Justice [2021] NSWSC 1081; GR v Secretary, Department of Communities and Justice [2022] NSWCA 153.

2. On 20 July 2022, the Secretary of the Department of Communities and Justice (the Department) obtained orders from the Guardianship Division of the Civil and Administrative Tribunal of New South Wales (NCAT or the Tribunal), appointing the Public Guardian to be AB’s guardian and appointing NSW Trustee & Guardian to be the financial manager of his estate under the provisions of the Guardianship Act 1987 (NSW) [2] (collectively, the Orders).

   2. See Parts 3 and 3A.

3. On 19 August 2022, GR filed a Notice of Appeal against the Orders in the Appeal Panel of the Tribunal. Simultaneously, she applied for a stay of the Orders pending consideration of her appeal. On 28 October 2022, she filed a second stay application. Both were dismissed. On 16 December 2022, she made yet another stay application which too was dismissed. Her appeal against the Orders was dismissed by the Appeal Panel on 3 February 2023.

4. GR has a right of appeal against that dismissal under the NCAT Act [3] but has not availed herself of it.

   3. Section 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW), read with s 48 of the Supreme Court Act 1970 (NSW), provides for an appeal to the Court of Appeal from the Appeal Panel of the Tribunal, where the Appeal Panel includes a Judge of the District Court. The Appeal Panel included Coleman SC ADCJ.

5. Instead, on 4 November 2022, she instituted proceedings (the Equity proceedings) by way of a process headed “Summons (Judicial Review)”, seeking to quash the Orders and an order appointing her as enduring legal and financial guardian of AB (either alone or with her uncle). She filed an Amended Summons on 22 March 2023.

6. At the same time, she filed a Notice of Motion seeking, amongst others, transfer of her appeal on merits from the Tribunal to this Court.

7. On 17 February 2023, she commenced yet another set of proceedings by filing a Statement of Claim in the Common Law Division (the Common Law proceedings) which claims: “impugn the legal and financial guardianship orders of 20 July 2022; a perpetual injunction restraining the defendants from any further or new actions against her or AB; a recovery order for AB ‘to his mother’; general damages for physical and psychiatric injury and theft of Centrelink and NDIS payments, personal savings and property, and wages for forced free labour; special damages; aggravated damages for mental anguish; exemplary damages for contumelious conduct; and urgent injunctive relief”. The Statement of Claim describes the “Type of Claim” as:

1. False imprisonment

2. Malicious prosecution

3. Personal injury – motor vehicle

4. Professional negligence

5. Trespass to the person

6. Slavery

7. Starvation

8. Breach of United Nations Convention on the Rights of Disabled Persons

9. Professional negligence

10. Fraud

11. Hiding evidence to obstruct justice

12. Torture in detention

8. Additionally, in the Common Law proceedings, on 3 April 2023, she filed a Notice of Motion “to strike out defences” to her Statement of Claim, for summary judgment and for orders staying execution of the Orders.

9. In each of the Equity proceedings and the Common Law proceedings, the Public Guardian, by way of Notices of Motion dated, respectively, 20 February 2023 and 4 April 2023, moves for dismissal of those proceedings.

10. The only active parties to appear were GR and the Public Guardian.

11. The Public Guardian read the affidavit of a solicitor employed by the Crown Solicitor, affirmed 4 April 2023, which recounts the extensive litiscrescence in which GR has engaged and the extensive and unremitting communications which GR has had, and presumably will continue to have, with various Judges of the Court, seeking in effect, the same thing (based on the same general assertions), namely, that all orders in relation to AB be discharged and that she be appointed as his “legal and financial guardian”.

12. GR relied on her own affidavit, sworn 2 August 2022.

13. From the bar table, she repeated what she has on many previous occasions asserted, namely, that AB is being abused, physically and chemically, that he is being required to undergo forced labour, that he is being force fed, mechanically restrained and subject to various other abuses. She also made repeated allegations of fraud by officers of the Department.

14. The Public Guardian argues that both sets of proceedings should be dismissed because they amount to an impermissible circumvention of her rights of appeal from the Tribunal to the Court of Appeal.

15. The Public Guardian argues that both sets of proceedings are, in any event, an abuse of process.

16. I uphold both submissions.

17. GR has (or had) rights of appeal from the Appeal Panel of the Tribunal of which she did not avail, and has not availed, herself. This, together with the existence of the parallel Equity and Common Law proceedings seeking, in effect, duplicate relief, makes each an abuse of process which cannot be permitted to continue.

18. Additionally, both sets of proceedings are based on the same unsubstantiated allegations which permeate all of her proceedings for both final and interlocutory relief. Her allegations are not sustainable on any material properly before the Court.

19. I dismiss the Equity proceedings and the Common Law proceedings.

20. The plaintiff is to pay the costs of the defendants of both sets of proceedings.

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Endnotes

Decision last updated: 30 May 2023