GR v Secretary, Department of Communities and Justice (No 2)
[2022] NSWSC 1183
•1 September 2022
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New South Wales |
Case Name: | GR v Secretary, Department of Communities and Justice (No 2) |
Medium Neutral Citation: | [2022] NSWSC 1183 |
Hearing Date(s): | 1 September 2022 |
Decision Date: | 1 September 2022 |
Jurisdiction: | Equity - Duty List |
Before: | Meek J |
Decision: | Dismiss notice of motion with costs, such costs to be defendants’ costs in the proceedings. |
Catchwords: | CIVIL PROCEDURE – Proceedings commenced in Equity Division invoking parens patriae jurisdiction – NSW Civil and Administrative Tribunal (NCAT) makes guardianship orders regarding Plaintiff’s child – Plaintiff claims she has exercised a right to appeal against NCAT’s decision to the Common Law Division – Plaintiff applies to transfer proceedings to Common Law Division – Proceedings under the Guardianship Act 1987 (NSW) are assigned to the Equity Division – Application refused |
Legislation Cited: | Civil Procedure Act 2005 (NSW), ss 56-70 |
Cases Cited: | B v B [2017] NSWSC 1674 |
Texts Cited: | Ritchie's Uniform Civil Procedure NSW |
Category: | Procedural rulings |
Parties: | GR (Plaintiff) |
Representation: | Counsel: |
File Number(s): | 2022/178932 |
Ex Tempore Judgment
HIS HONOUR: These proceedings were commenced by GR on 20 June 2022 invoking the parens patriae jurisdiction of the Court seeking orders in relation to her child who was born in 2004, and is currently aged 17.
In accordance with the usual practice of the Court that arises in its protective and parental jurisdiction, the Court orders that the name of the child, the subject of the proceedings, not be published: see GR v Secretary, Department of Families, Disabilities and Community Services [2019] NSWCA 277 at [1] per Brereton JA, Emmett AJA agreeing.
Without any disrespect and for the purposes of consistency and the various reasons for judgment that have been published, I will refer to the Plaintiff as "GR"; the First Defendant, being the Secretary, Department of Communities and Justice, as the "Secretary"; the Second Defendant, who is the Minister for Families, Community 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".
The particular application before the Court is a form of Notice of Motion provided yesterday by GR by email to my Associate. The Notice of Motion seeks the following orders:
“1 This Notice of Motion is to be returnable instanter before Duty Justice in Common Law
2 Grant leave to file the amended summons
3 Transfer the summons to Common Law Division
4 Gross sum costs order for this application pursuant to s98(4)(c) of the Civil Procedure Act 2005”
GR sought that the Notice of Motion be listed.
For the purposes of the application, GR relied upon and read an affidavit of herself dated 2 August 2022. GR also provided written submissions dated 1 September 2022.
GR's affidavit was read. BB firmly objected to certain material in the affidavit, which he submitted was scandalous.
It is evident that the affidavit contains considerable material which goes beyond the strict procedural relief sought in the Notice of Motion.
The submissions of GR do not make specific reference to all the material in the affidavit. Whilst I have permitted the affidavit to be read, I have had particular regard to the matters which GR has referred to in the submissions.
Ms Phillips also made me aware during the listing that there are proceedings before the Children's Court that are coming up, including a listing on 9 September 2022.
Generally an application for listing of a Notice of Motion is straightforward. However, in these proceedings there are orders in place which preclude certain applications being made by GR without the leave of a judge. In particular, on 20 June 2022, Kunc J 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.”
It can be seen that Order 3 of the orders made by Kunc J as outlined above, 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.
Order 4 made by Kunc J on that occasion provides a structure and procedural guide for how any such application is to be made by GR.
The necessity for GR to obtain a grant of leave for any proposed urgent interlocutory application to the Duty Judge appears exceptional.
I made some comments in relation to this in my reasons for judgment given on 3 August 2022: GR v Secretary, Department of Communities and Justice [2022] NSWSC 1029 at [42]-[49].
Beyond what follows, it is not necessary for me to repeat what I said there.
Some recent history of the matter is recited in my reasons for judgment dated 3 August 2022.
On that occasion, GR sought for the matter to be listed before me, as I was then Duty Judge.
That arose out of correspondence with my Associate by email on 26 July 2022.
At the end of that week, I declined to list the matter and I indicated that I would give reasons for judgment, which I did, those reasons being delivered on 3 August 2022.
The orders sought in the Notice of Motion are, in my assessment, essentially procedural orders, and do not, per se, fall within the description of "urgent interlocutory relief" in relation to AB, subject to one matter, that I will come to a little later.
It is for that reason that I listed the matter at noon today.
On the listing, GR appeared by telephone dial-in, having requested and having been given details enabling her to do so.
Ms Fitzgerald appeared in court on behalf of the Secretary and Minister.
BB appeared by video connection. BB was unable to secure a satisfactory audio connection and accordingly additionally dialled into the Court and achieved an audio connection that way. Nonetheless he continued to appear by video connection as well.
AB was represented by Ms Phillips.
I first established whether or not each of the defendants/respondents to the Notice of Motion opposed the relief sought.
Ms Fitzgerald initially had no instructions to oppose the relief sought, but did seek to draw the Court's attention to prior orders of the Court.
BB and Ms Phillips, on behalf of AB, each opposed the relief sought.
I gave each of the defendants/respondents an opportunity to explain their opposition, and they elaborated certain reasons for the opposition.
Part of the opposition was a concern that the relief sought might transgress the orders that I have referred to of Kunc J.
My provisional view during the hearing, which I now find, is that the relief sought in the Notice of Motion is essentially procedural relief, as I have indicated.
I gave the opportunity to GR to respond to the reasons for opposition.
In the course of doing so, GR indicated or suggested that part of the purpose of the application was to get urgent orders in relation to AB.
It should be made clear that no party in legal proceedings, whether a party self-represented or represented by a legal representative, should seek to use the Court’s processes to obtain certain relief that is the subject of an order requiring leave under the guise of seeking other relief.
I indicated to GR that if she wished to seek such urgent orders in relation to AB, she would need to comply with the orders of Kunc J.
GR indicated that I ought to make orders permitting her to do so on the basis that she could not obtain medical evidence to comply with the orders of Kunc J.
I established from GR that the orders of Kunc J remain in place and that she has not sought to appeal or set aside those orders.
I declined to entertain any application to interfere with the orders of Kunc J. Even if I had the power to do so, there has been no properly formulated application before the Court to do so. Nor has there been prior notice given to the other parties that any such application to appeal, set aside or vary the orders of Kunc J would be made. Further, no reason has been given for so doing on an urgent basis.
In those circumstances, I proceeded to address the application before the Court which are four orders sought in the Notice of Motion.
Having established that each of the defendants opposed the orders sought in the Notice of Motion, I made some preliminary remarks regarding the relief to attempt to clarify the basis for the orders and to give GR a fair opportunity to respond.
I established from each of Ms Fitzgerald, BB and Ms Phillips that none of them wished to adduce evidence on the Notice of Motion or be given the opportunity to make further written submissions, and each of them were content for me to proceed to deal with the Notice of Motion.
Further, Ms Fitzgerald informed me that she had, during the course of the listing, been able to obtain instructions to the effect that she did oppose the relief sought in the Notice of Motion.
Since the reasons for judgment which I gave in the matter on 3 August 2022, there have been a number of developments.
On 10 August 2022, the matter was listed before Registrar Walton who, on that occasion, made a number of orders relating to the giving of expert evidence and relation to a proposed amended summons.
The Registrar adjourned the matter to 29 September 2022.
The orders made by Registrar Walton in relation to the proposed amended summons were as follows:
“6 Plaintiff to serve a proposed amended summons on the defendants by 1 September 2022.
7 Defendants to indicate consent or otherwise by 16 September 2022
8 If consented to Amended Summons to be filed and served by 23 September 202[2]. If no consent a motion to be filed and served by 23 September 2022.”
On 18 August 2022 the Court of Appeal delivered reasons for judgment (GR v Secretary, Department of Communities and Justice [2022] NSWCA 153) in relation to the appeal from a decision of Sackar J given on 27 August 2021: GR v The Department of Communities & Justice [2021] NSWSC 1081.
Further, on 18 August 2022, it appears that GR had applied to the Court for leave to issue subpoenas in these proceedings to Westmead Children's Hospital and Blacktown Hospital.
The Principal Registrar refused the application for relief to issue a subpoena on the basis that in accordance with the order of Registrar Walton on 10 August 2022, GR was to serve the proposed amended summons on the defendants by 1 September 2022, which is today, and the pleadings had not closed, and accordingly, it could not be ascertained, at that stage, how the documents sought in the subpoena were relevant to facts in issue.
I have referred to the fact that on the hearing of the Notice of Motion, GR provided written submissions to the Court.
The submissions are as follows:
“1 Pursuant to UCPR r 1.17, quoted in (2) below, the plaintiff seeks an order, as in her notice of motion of 31 August 2022, to transfer the summons to Common Law Division
2 UCPR r 1.17 Bulk transfers between Supreme Court Divisions (cf SCR Part 14A, rule 7)
The Supreme Court may of its own motion, by a single order, direct that proceedings of a specified type be transferred between the Common Law Division and the Equity Division.
3 On 27 July 2022, NCAT made guardianship orders for [AB] from age 18, which is 27 October 2022, after excluding both parents as “parties” to the proceedings on 9 June 2022
4 The appeals from the guardianship orders are assigned to the Common Law Division of the Supreme Court in its Administrative List pursuant to UCPR r 1.18 (c)
5 The plaintiff has exercised her right to appeal to the Supreme Court Common Law Division from NCAT’s Guardianship Division, pursuant to Schedule 6, Part 6, clause 14 of the Civil and Administrative Tribunal Act 2013, in filing a statutory appeal there
6 To reduce multiplicity of divisions involved and to reduce costs, the plaintiff seeks to transfer her summons there
7 In the 7 weeks left until [AB] turns 18yo on 27 October 2022, and the matter is no longer in the care and protection jurisdiction in Equity, the plaintiff has no prospects of getting the relief her son urgently needs in this division, with the multiple restraints ordered against her ability to relist the matter on 20 June 2022, the registrar repeating that its not her job and the secretary refusing to comply with independent medical assessment of [AB] [affidavit 2 August 2022]
8 The plaintiff’s son has sustained serious injuries in care by off label, experimental medical treatments for protest behaviours without any treatment orders [Reports of Prof Jureidini of 3 and 12 July 2020, of Dr Lucire of 12 July 2021 and of Prof Einfeld of 25 March 2020 and 13 July 2021] as well as multiple spinal injuries from repeated car accidents, and has diagnosed post traumatic stress disorder from abuse in care by illegal force feeding by restraints and comas, which are assigned to the Court’s Common Law Division on its personal injury list, where an interim injunction can be obtained quickly on a summons to protect him against harmful involuntary medical treatments, as he urgently needs
9 The plaintiff asks this Court to file her amended summons today and transfer it to Common Law, where her appeals against the guardianship orders will be concurrently case managed”
GR also, on the application, made further oral submissions.
The oral submissions effectively confirmed the written submissions, and made reference, in particular, to provisions of the rules whereby GR asserted that any appeal from the NSW Civil and Administrative Tribunal (NCAT) should be assigned to the Common Law Division of this Court.
Proceedings in this Court, which are not assigned to the Court of Appeal, are assigned to the divisions of the Court: s 49 Supreme Court Act 1970 (NSW) (SCA). The business of the Court, other than the Court of Appeal, is for its convenient dispatch assigned in accordance with the provisions of Div 2 of Pt 3 SCA: s 52 SCA.
Subject to those provisions, there are provisions of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) which enable originating processes to be filed in each of the Common Law Division and Equity Division of the Court.
Where the originating process indicates the specific list of the Court in which the proceedings are intended to be entered, the proceedings are to be entered into that list: r 45.1 UCPR. There is power in the Court to order that proceedings be entered in or removed from a specialist list: r 45.2 UCPR.
Broadly speaking, and subject to the rules, there are assigned to the Common Law Division certain matters by s 53(1) SCA.
There is a further assignment of business to the Common Law Division pursuant to r 1.18 UCPR.
There is assigned to the Equity Division certain matters by s 53(2) of the SCA and also assigned to the Equity Division business pursuant to r 1.19 UCPR.
It may be noted that pursuant to r 1.19 UCPR, there is assigned to the Equity Division proceedings on appeal to the Court in proceedings relevantly between parent and child: r 1.19(c).
The provisions of the UCPR qualify, to some degree, the general assignment of business in relation to specific Commonwealth and New South Wales legislation listed in the UCPR Sch 8: see r 1.16 UCPR.
By Sch 8, proceedings under the Guardianship Act1987 (NSW) are assigned to the Equity Division.
That is evident not merely from the terms of Sch 8, but also from the practice of the Court, including cases that I referred to during the listing and hearing of the Notice of Motion being F v NSW Trustee and Guardian [2017] NSWSC 1319 and B v B [2017] NSWSC 1674.
Those decisions make comment on appeals to the Court from the Guardianship Division of NCAT.
GR asserts that an appeal from Guardianship orders is assigned to the Common Law Division of the Supreme Court in its Administrative List pursuant to UCPR r 1.18(c).
The provisions of r 1.18 UCPR are as follows:
“1.18 Assignment of business to Common Law Division (cf SCR Part 12, rule 1(3))
The following proceedings in the Supreme Court are assigned to the Common Law Division—
(a) proceedings for a debt arising under any Act (including any Commonwealth Act) by which any tax, fee, duty or other impost is collected or administered by or on behalf of the State or the Commonwealth,
(b) proceedings on an appeal or application to the Court—
(i) in respect of a decision of a public body (other than a court or tribunal) or public officer (other than an officer of a court or tribunal), or
(ii) for the removal into the Court of any matter before a public body (other than a court or tribunal) or public officer (other than an officer of a court or tribunal),
(c) proceedings on an appeal or application to the Court in respect of—
(i) a decision of a public body constituted or established by or under a Commonwealth Act (other than a court exercising federal jurisdiction within the meaning of section 26 of the Acts Interpretation Act 1901 of the Commonwealth), or
(ii) a decision of a person holding or acting in a public office under a Commonwealth Act (other than an officer of a court referred to in subparagraph (i)),
(d) subject to section 53 of the Supreme Court Act 1970, proceedings that are not assigned to the Equity Division by these rules.”
In particular, it can be seen that UCPR r 1.18(c) relates to proceedings on appeal or an application to the Court in relation to the decision of a public body constituted or established by or under a Commonwealth Act or a decision of a person holding or acting in a public office under a Commonwealth Act.
NCAT is not a body constituted or established by or under a Commonwealth Act.
The Court, in a Division on application by a party or of its own motion, may, on terms, order that the whole or any part of any proceedings in that Division be transferred to another division: s 54(1) SCA.
Proceedings may be retained in a Division whether or not the proceedings are assigned to that division by the SCA or by the rules: s 54(2) SCA.
A convenient summary of the practice of the Court is noted in Ritchie's Uniform Civil Procedure NSW at [SCA s 54.5] Transfer between division of the Court. I note the authors of Richie's indicate, in summary, as follows:
“The powers of the court are exercisable in any Division, irrespective of the formal assignment of business: Mavrideros v Mack (NSWSC, Young J, No 1887/96, 16 June 1997, unreported, BC9702623), following Re Tharp (1878) 3 PD 76. … Accordingly, where proceedings have been commenced in a particular division the orderly conduct of the business of the court will usually require that the proceedings remain in that division, unless a sufficient case for transfer to another division has been made out: Hospitality Excellence Pty Ltd v Minister for Community Services, Aged Services and Disability Services (NSWSC, Dunford J 16 July 1996, unreported, BC9603235) … The principle governing the transfer of proceedings to another division is whether that other division has more appropriate machinery to conveniently dispose of the proceedings or whether it is otherwise more convenient to order the transfer: Hillman v Mayhew (1876) 1 Ex D 132; Holloway v York (1877) 2 Ex D 333; Re Martin (1882) 20 Ch D 365.”
The authors of Ritchie’s state that given the powers in ss 56-70 of the Civil Procedure Act 2005 (NSW), rr 2.1-2.3 of the UCPR, there is ordinarily no basis for supposing that proceedings are likely to be dealt with more expeditiously in one division rather than another.
I now proceed to address the orders sought in the Notice of Motion.
In relation to Order 1, the Notice of Motion has been sought by GR to be filed in these proceedings. At least for that reason, the motion has been assigned or listed to me as Equity Duty Judge. There is, accordingly, no reason or occasion for the Notice of Motion to be listed before the Duty Judge in Common Law.
As the Notice of Motion has been listed before me and is being dealt with by me, there is no need to make Order 1 in the Notice of Motion, and I decline to make any order that the Notice of Motion be returnable before the Duty Judge in Common Law.
In relation to Order 2 of the Notice of Motion, that seeks a grant of leave to file the amended summons.
It is unclear on the application whether that is an application for a fresh order by me as Duty Judge to make, or whether GR seeks a review of the orders made by Registrar Walton on 10 August 2022.
The jurisdiction to review a Registrar's decision arises pursuant to s 121(3) of the SCA together with the UCPR r 49.19(1). The power is discretionary: see, for example, Z v Mental Health Review Tribunal (No 2) [2022] NSWCA 131 at [51]-[52].
Insofar as the matter involves any application to review the Registrar's decision, I proceeded on the basis that the material relied upon is the material that I have referred to, which is the affidavit of GR dated 2 August 2022, and the submissions that have been made.
Orders were made by Registrar Walton on 10 August 2022. Those are the orders that I have referred to above.
No basis has been given to demonstrate why the proposed amended summons should be filed without opportunity to the defendants to indicate consent or otherwise.
To the extent that I am asked to review the matter and deal with the application afresh, I note that a draft of the proposed amended summons has been provided to the defendants already, and that occurred prior to today, or at least by today.
The defendants should be given an opportunity to indicate their consent or otherwise, by 16 September 2022.
If they consent to the amended summons being filed and served by 23 September 2022, the amended summons may be filed.
Consent that a Notice of Motion ought to be filed and served by 23 September 2022.
In the event that no such application has been made to review the Registrar's order, I, in any event, decline to grant leave to file the amended summons at this stage essentially for the reasons that I have indicated above. A draft of the amended summons has been served on the defendants, and they should be given an opportunity to consider its terms in accordance with the timing I have indicated above.
In relation to Order 3 of the Notice of Motion, for the reasons that I have from outlined above, any appeal proceedings in respect of the Guardianship order, were there to be an appeal to this Court, would be properly assigned to the Equity Division.
The particular basis set out in the submissions on the Notice of Motion for a transfer order, identified the Guardianship order as having been made by NCAT purportedly on 27 July 2022, but in fact, as I have noted, it was made on 20 July 2022 and issued on 27 July 2022.
During the course of the listing and the hearing of the Notice of Motion, there was some doubt about precisely what GR has done by way of appeal of that order.
There is some indication on the part of the defendants that there are proceedings before NCAT listed on 13 September 2022 in relation to the appellate division of NCAT.
GR did not entirely agree with what was indicated by the defendants, in that regard.
If there is indeed an appeal from the decision made on 20 July 2022 to the appellate division of NCAT, then those procedures will be worked out, and do not provide a basis for transfer of the summons to the Common Law Division.
If, on the other hand, GR seeks to appeal from the decision of NCAT in some way to the Court, then, as I have indicated, proceedings under the Guardianship Act are assigned to the Equity Division.
For that reason, I decline to transfer the summons in these proceedings to the Common Law Division.
Order 4 as sought in the Notice of Motion is an order for a gross sum costs order for the application pursuant to s 98(4)(c) of the Civil Procedure Act.
Apart from Order 1 of the Notice of Motion which involves the Order for Listing, which is this application, I have declined to make Orders 2 and 3 as sought in the Notice of Motion.
Ordinarily costs would follow the event. I will give the parties a brief opportunity, in a moment, to address on the question of costs.
Prior to doing so and prior to formalising the orders to be made, there is one matter that I should mention.
During submissions in reply, GR proceeded to make very serious allegations against Ms Fitzgerald, who appears for the Secretary and the Minister. The transcript will show the extent of the allegations made.
Nonetheless, the allegations included allegations that she had released records in a manner that was improper, and that she had been sacked by the Crown Solicitor's Office and/or the Government.
Further allegations were made that Ms Mooney and Mr Anderson had been similarly sacked.
I informed GR the allegations were very serious, and I reminded GR that her comments in this regard strayed very far, and in my view, to an impermissible extent from the relief sought in the Notice of Motion.
Ms Fitzgerald, for her part, denied that she had engaged in any improper conduct and stated that she had never been sacked by the Crown Solicitor's Office or the Government. She further stated that Ms Mooney is on leave and Mr Anderson was unavailable to appear and that was the reason for their non-appearance, rather than for the asserted reason that they had been sacked.
It should be understood that the Court does not tolerate serious allegations being raised in such a collateral way against legal practitioners.
There are procedures for making complaints against legal practitioners, and processes to be followed.
It is not appropriate for such allegations to be made during the course of a hearing of a Notice of Motion seeking procedural orders where the allegations have no obvious relevance to the relief sought in the Notice of Motion, particularly in circumstances where the allegations are made in reply and without warning or notice to, in this instance, Ms Fitzgerald.
Ms Fitzgerald has denied the allegations, and I say nothing further about them.
The hearing of this Notice of Motion is not the occasion to entertain any such allegations, let alone make any comment or finding in respect of them.
[Parties addressed on costs.]
I make the following orders:
(1)Note the Notice of Motion has been listed before Meek J as Equity Duty Judge.
(2)Dismiss the claims for relief in paragraphs 1-3 of the Notice of Motion.
(3)Order the costs of and incidental to the Notice of Motion be the defendants’ costs in the proceedings to the extent they are entitled to claim costs.
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