GR v Secretary, Family, Disability and Community Services; GR v Minister, Family, Disability and Community Services

[2020] NSWSC 668

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	GR v Secretary, Family, Disability and Community Services;; GR v Minister, Family, Disability and Community Services [2020] NSWSC 668
Hearing dates:	28 May 2020
Date of orders:	28 May 2020
Decision date:	28 May 2020
Jurisdiction:	Equity
Before:	White J
Decision:	1. Order that the claims for relief that were made in the Equity Division before me today, that mirrored the claims for relief in the notice of motion, purportedly filed in the Court of Appeal, be dismissed. 2. Order that the amended notice of motion dated 27 May 2020 be transferred to the Equity Division and be dismissed.
Catchwords:	CIVIL PROCEDURE – Notice of Motion – Duty list – Whether jurisdiction of the duty judge list properly invoked – where regime established in relation to the applicant to preserve the integrity of the list in light of repeated applications in identical or similar terms- whether applicant has complied with the regime – whether impossible for applicant to comply with the regime
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), r 36.16(1)
Cases Cited:	Director-General, Department of Community Services; Re Thomas [2009] NSWSC 217 GR v Secretary of Department of Family and Community Services and Justice & Ors (No. 3) [2020] NSWSC 259 GR v Secretary of Department of Family and Community Services and Justice [2020] NSWSC 348 GR v Secretary, Department of Communities and Justice [2020] NSWSC 645 GR v Secretary, Department of Communities and Justice [2020] NSWSC 607
Category:	Procedural and other rulings
Parties:	RG (Applicant) Secretary, Family, Disability and Community Services (First Respondent) Minister, Family, Disability and Community Services (Second Respondent) BB (Third Respondent) The Child by their Independent Legal Representative (Fourth Respondent)
Representation:	Counsel: Self-represented (Applicant) M Anderson (First and Second Respondents) Self-represented (Third Respondent) E Stoliar (ILR for the Child)   Solicitors: Crown Solicitors Office (First and Second Respondents)
File Number(s):	2019/62836;2020/123080

Judgment

1. HIS HONOUR: At 9:20am this morning my associate received an email from the applicant seeking to list this matter today in the duty list. The proceedings concern a child who has been given the initials AB. Applications concerning the child brought by the child's mother (GR) have been before the Court on numerous occasions.

2. The applicant's email attached a notice of motion called an "amended notice of motion". It is said to have been filed in the Court of Appeal. That is entirely inappropriate because the relief sought is relief that could only be given, if given at all, in the Equity Division.

3. The relief sought in the amended notice of motion seeks, in substance, first, to set aside a judgment and orders made by Slattery J on 22 May 2020 pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 36.16(1).

4. Secondly, it seeks to invoke the parens patriae jurisdiction.

5. Thirdly, it seeks orders that AB be returned to his mother's care. Such orders would be contrary to the orders made by the Children’s Court after an extended hearing in that Court. The orders of the Children’s Court are subject to an appeal to the Equity Division.

6. Fourthly, the notice of motion seeks orders in relation to what is said to be planned fortnightly depot anti-psychotic injections. It seeks an order that that programme be ceased forthwith and that the first and second defendants, being the Secretary of the Department of Communities and Justice and the Minister of Communities and Justice, not consent to any medical treatments without leave of the Court after a contested hearing.

7. Fifthly, it seeks an order that NDIS funding for AB be returned to his mother's control forthwith. Finally, apart from costs, the amended notice of motion seeks an order that an expert witness, Professor Stewart Einfeld and up to two other expert witnesses, be given access to AB, his carers and his entire medical records.

8. So many are applications that the applicant has brought in relation to her son before the duty judge in this Division, that on 18 March and 2 April 2020, Kunc J and Robb J have made orders as follows:

“1.    Until further order neither the father nor the mother may make any urgent interlocutory application to the duty judge in relation to the child without the prior leave of the duty judge for the time being.

2.    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 evidence as to urgency.

(c)    a copy of this judgment, and

(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 and the change in the 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.”

(GR v Secretary of Department of Family and Community Services and Justice & Ors (No. 3) [2020] NSWSC 259; GR v Secretary of Department of Family and Community Services and Justice [2020] NSWSC 348.)

9. What is described as an amended notice of motion is supported by an affidavit of the applicant mother dated 27 May 2020. It does in substance meet the requirements of paragraphs (a) and (b) of order 2. Paragraph (c) of that order was not complied with, but the judgment of Kunc J of 18 March 2020 is before me. Paragraph (d) of that order was not complied with.

10. During the course of this morning, whilst I was sitting as duty judge, the applicant forwarded to my associate 13 emails. By an email sent at 11.48am, she forwarded a message from the assistant of Professor Einfeld that states:

"As you know, Professor Einfeld does not agree with the current management. However there is not the remotest chance that, given the upcoming appeal, the Court will act on such a letter from Professor Einfeld".

11. She also attached a message that said, "Professor Einfeld has provided a message that if the judge wishes to talk to him then he can ring him" on a telephone number that was given. That material does not satisfy the requirements of a medical report that identifies the nature of the change of medical circumstances and the nature of the orders that should be made in the interests of the child and the reasons for urgency.

12. The applicant said that it was impossible for her to comply with that order. She has arranged for another medical professional to be available, a Dr Michael Fairley, who has attended at least part of the hearing by telephone. I am not sure whether he has attended all of the hearing by telephone. He is a child and family psychiatrist. He has provided reports dated 27 March and 20 April 2020 which were attached to the applicant's affidavit. Those reports, however, do not identify any particular urgency.

13. The applicant said that the reason it would be impossible for her to comply with the order was that, since 26 April, those who have the medical care of the child have prevented any access to him by other medical professionals. I asked Dr Fairley whether it would be impossible for a report to be prepared as the applicant submitted. The information provided by Dr Fairley made it clear that insofar as he would be able to provide a report, he was "not sure that anything has urgently changed".

14. In these circumstances, it does not seem to me that the gateway for the applicant to be able to invoke the urgent jurisdiction of the Court through the duty judge has been opened.

15. The notice of motion relied upon by the applicant is called an "amended notice of motion". The explanation for that is that a notice of motion in almost the same terms was filed, also purportedly in the Court of Appeal, on 26 May 2020. The amended notice of motion includes one further order that was not sought in the notice of motion filed on 26 May 2020, namely an order that the relief that had been sought before Slattery J in a notice of motion dated 27 April 2020 before him be granted.

16. The notice of motion of 26 May 2020 came before Leeming JA, sitting as a judge in the Equity Division, yesterday (GR v Secretary, Department of Communities and Justice [2020] NSWSC 645). His Honour did not deal with the merits of the application because his Honour said (at [10]):

“It seems to me to be clear beyond dispute that the orders binding the mother are applicable and have not been complied with.”

17. The orders to which his Honour referred were the orders of Kunc J and Robb J which I have set out earlier in these reasons. His Honour added (at [12]):

“I say it again that in the event that any further application is made to the duty judge in relation to the welfare of this child, it is essential that the mother or father supply, before the application is heard, copies of all the material upon which they wish to rely.”

18. I have, during the course of this hearing, been referred to various documents in the form of notices of motion or judgments which were not supplied before the commencement of the hearing, and the information from Dr Fairley was not supplied before the commencement of the hearing.

19. Leeming JA said (at [13]):

“[The] notice of motion was filed in separate proceedings brought by her in the Court of Appeal. The proceedings today have, in that respect, proceeded informally. I dismiss the application which was made before me today for orders mirroring those in the motion filed on 26 may 2020 in the Court of Appeal."

20. During the course of the hearing it emerged, as I understand what I have been told, that these proceedings are listed for hearing before the Chief Judge in Equity on 5 June 2020 for the purpose of dealing with an application said to have been brought by the defendants, as I understand it, that was filed on 22 May 2020 that seeks to strike out a proposed notice of motion that the applicants would seek to bring. The notice of motion the applicant would seek to bring, I am told, would include an application for an order that medical witnesses be given access to the child and his entire medical records.

21. I have been told that a subpoena has been issued, apparently in connection with that application, and that documents have been provided to the applicant. She says that the documents provided are not a complete answer to the subpoena. Be that as it may, it is clear that at least that part of this proposed application will be before the Chief Judge in Equity for hearing of at least the possible merits of the application. In those circumstances, to bring a fresh proceeding before two new judges sitting in the Equity Division this week, has all the appearance of judge shopping. When I put that proposition to the applicant, she did not disclaim it.

22. In support of the claim for orders concerning planned regular injections of anti-psychotic drugs, the applicant has foreshadowed that she would seek to rely upon the decision of Brereton J in Director-General, Department of Community Services; Re Thomas [2009] NSWSC 217 particularly (I assume) at [28] and following. It is not at the moment clear to me whether or not any relief substantively to that effect would be sought in any application that might be dealt with by the Chief Judge in Equity. Mr Anderson, who appeared for the first and second respondents, said that the question of that injection programme was something that was considered by Slattery J in his reasons of 22 May 2020 (GR v Secretary, Department of Communities and Justice [2020] NSWSC 607 at [32]-[38]). It is not clear whether the issues concerning Re Thomas were raised before his Honour.

23. Be that as it may, Slattery J observed (at [38]) that:

"There was no indication in the medical evidence that the administration of the drugs was life-threatening as would require the Court's rapid intervention after 3 April 2020.”

24. It does not appear to me that that question would have the urgency that would warrant the matter being dealt with in the duty judge list with effectively no notice to the respondents and no opportunity for them to put on materials in response to the applicant's materials, even if the requirement for leave had been met.

25. As it is, that requirement has not been met.

26. I order that the claims for relief that were made in this division before me today, that mirrored the claims for relief in the notice of motion, purportedly filed in the Court of Appeal, be dismissed. That would leave extant the notice of motion filed in the Court of Appeal.

27. Leeming JA did not, sitting as a judge of appeal, dismiss the notice of motion purportedly filed in the Court of Appeal. The notice of motion described as "amended notice of motion" filed in the Court of Appeal does not seek any relief that would be appropriate from the Court of Appeal. In particular, the application to set aside the judgment of Slattery J is not brought in the Court of Appeal's appellate jurisdiction but rather is brought pursuant to UCPR r 36.16(1). The notice of motion has been filed in the wrong part of the Court.

28. I think the appropriate course is to order, in my capacity as a judge of appeal, that the amended notice of motion dated 27 May 2020 be transferred to the Equity Division enabling it to be dismissed by myself as Equity duty judge, and I so order.

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Amendments

01 June 2020 - Amendment to final paragraph.

Decision last updated: 01 June 2020