GR v The Secretary, Department of Communities and Justice

[2021] NSWCA 169

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

GR v The Secretary, Department of Communities and Justice [2021] NSWCA 169

Hearing dates:

9 August 2021

Date of orders:

9 August 2021

Decision date:

09 August 2021

Before:

Gleeson JA

Decision:

(1)   Dismiss the notice of motion filed 29 July 2021.

(2)   Applicant to pay the first and second respondents’ costs of the motion.

Catchwords:

CHILD WELFARE – care proceedings – practice and procedure – application to vary final judgment – whether notice of motion should be transferred to Equity Division – motion dismissed

Legislation Cited:

Supreme Court Act 1970 (NSW), s 51(2)(b)

Uniform Civil Procedure Rules 2005 (NSW), rr 36.16(1), 42.1

Cases Cited:

GR v Secretary, Department of Communities and Justice [2021] NSWCA 157

GR v The Department of Communities & Justice [2021] NSWSC 983

Category:

Principal judgment

Parties:

GR (a pseudonym) (Self-represented) (Applicant)
The Secretary, Department of Communities and Justice (First respondent)
The Minister, Department of Communities and Justice (Second respondent)
BB (a pseudonym) (Self-represented) (Third respondent) (No appearance)
Ms K Wooi (Independent legal representative) (Fourth respondent)

Representation:

Counsel:
GR (Self-represented) (Applicant)
Mr M Anderson (First and second respondents)
Ms K Wooi (Independent legal representative) (Fourth respondent)

Solicitors:
GR (a pseudonym) (Self-represented) (Applicant)
Crown Solicitor’s Office (First and second respondents)
Ms K Wooi (Independent legal representative) (Fourth respondent)

File Number(s):

2020/359409

Judgment

1. GLEESON JA: On 30 July 2021, the Court allowed an appeal by GR (the mother of the young person, AB) and set aside interlocutory orders made in the proceedings below appointing a guardian ad litem for AB: GR v Secretary, Department of Communities and Justice [2021] NSWCA 157.

2. By notice of motion filed 29 July 2021, GR seeks a variety of relief, including varying the final judgment in this appeal pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 36.16(1), that the parens patriae jurisdiction be invoked, an order that AB be placed in his own home forthwith in his mother’s care, an order that AB not be removed from his home or any other place in his mother’s care without leave of the court, and that the order of the Children’s Court of 3 April 2020 be set aside or stayed.

3. At the hearing of the application, GR sought a transfer of the motion to the Equity Division. This was opposed by the first and second respondents, the Secretary and the Minister, who sought dismissal of the motion on the ground that Sackar J had already dealt with a similar application by GR filed 3 August 2021 in the Equity Division, which was dismissed on 4 August 2021: GR v The Department of Communities & Justice [2021] NSWSC 983.

4. GR sought to justify the transfer on the basis of advice said to have been given by counsel, Mr M Robinson SC, that although she could file a summons seeking leave to appeal from the decision of Sackar J of 4 August 2021, she should instead seek to have the motion in this Court transferred to the Equity Division with a view to making another application in that Division.

5. Whilst this Court has power to remit proceedings to a Division (Supreme Court Act 1970 (NSW), s 51(2)(b)), the appropriate course here is that the motion be dismissed. This is for several reasons.

6. First, insofar as the motion seeks to vary the judgment of this Court given on 30 July 2001, that application can only be dealt with by this Court, not the Equity Division.

7. Second, insofar as the motion seeks new and different relief concerning the care of AB which is unrelated to the narrow subject matter of the appeal which was determined on 30 July 2021, the power under UCPR, r 36.16(1) to vary the Court’s judgment is not engaged.

8. Third, to the extent that the motion seeks to challenge the interlocutory decision of Sackar J given on 4 August 2021, the motion is incompetent in the absence of the filing of a summons seeking leave to appeal from that order.

9. As to costs, the Secretary and the Minister sought an order for the costs of the motion. Ms Wooi, the independent legal representative for AB, did not seek any order as to costs. GR says that there should be no order as to costs of the motion because she had personally incurred costs in relation to the appeal to this Court which was determined on 30 July 2021. That is no reason why the usual rule contained in UCPR, r 42.1 (that costs follow the event) should not apply in this case where GR made a new application after judgment on the appeal had been reserved, on discrete and unrelated issues and that application is later dismissed.

10. Accordingly, at the conclusion of the hearing on 9 August 2021 the Court made the following orders:

1. Dismiss the notice of motion filed 29 July 2021.

2. Applicant to pay the first and second respondents’ costs of the motion.

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Decision last updated: 09 August 2021