Hariz v Secretary, Department of Communities and Justice

[2021] NSWSC 694

Supreme Court

New South Wales

Medium Neutral Citation:

Hariz v Secretary, Department of Communities and Justice [2021] NSWSC 694

Hearing dates:

11 June 2021

Date of orders:

11 June 2021

Decision date:

11 June 2021

Jurisdiction:

Equity - Duty List

Before:

Parker J

Decision:

See [45]

Catchwords:

CIVIL PROCEDURE – application challenging an interlocutory decision of the Children’s Court – oral application to stay proceedings in the Children’s Court – where the effect of the interlocutory decision was that the plaintiff was unable to subpoena documents from NSW Police – whether the Court’s parens patriae jurisdiction is engaged – whether the Court’s prerogative relief jurisdiction under the Supreme Court Act 1970 (NSW) is engaged – no grounds to justify intervention in the Children’s Court proceedings – application dismissed with costs

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW), s 45

Supreme Court Act 1970 (NSW), s 69

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Hariz v Department of Communities & Justice [2021] NSWSC 519

RH v Secretary, Department of Communities & Justice [2021] NSWCA 101

Category:

Procedural rulings

Parties:

Raed Hariz (Plaintiff)
Secretary, Department of Communities and Justice (Defendant)

Representation:

Counsel:
B Dean (Defendant)

R Lee (for Commissioner for Police)

Solicitors:
Crown Solicitors Office

In person:
R Hariz

File Number(s):

2021/163335

Publication restriction:

Nil

Judgment – EX TEMPORE

Revised from transcript; issued 15 June 2021

1. Before the Court is an application to stay proceedings in the Children’s Court concerning the care and custody of the children of the plaintiff, Raed Hariz.

2. The application has been made in freshly commenced proceedings in which Mr Hariz seeks to challenge an interlocutory ruling or rulings by the Children’s Court. The precise nature of the ruling or rulings is unclear, but one of the rulings appears to have had the effect that Mr Hariz was unable to subpoena documents which he wished to use for the purpose of conducting the proceedings.

3. Mr Hariz is representing himself in the present proceedings, as well as in the Children’s Court proceedings. There is a lack of evidence, at least in admissible form, of what has been happening in the Children’s Court proceedings. What follows has been pieced together from other judgments of the Court and what I have been told from the Bar Table.

4. The Secretary of the Department of Communities and Justice, who is the defendant in these proceedings, removed the children from the care of Mr Hariz and his wife in March 2020. That action was taken under the Children and Young Persons (Care and Protection) Act 1998 (NSW). As required by s 45 of the Act, the Secretary then began proceedings for a care order in the Children’s Court.

5. During the course of the Children’s Court proceedings, the Secretary obtained an interim care order. The terms of that order are not recorded in the evidence before me, but the order seems to have resulted in the children being returned to their mother’s custody in the family home. It appears that Mr Hariz has been excluded from living there or having any direct contact with the children.

6. The Secretary’s application for a final order was initially fixed for hearing over two separate weeks, the first of which was the week commencing 17 May this year. For the purposes of the final hearing, the Children’s Court has been constituted by a Magistrate. It seems that the hearing took place in the week commencing 17 May and has continued this week. Further hearing dates have been allocated for August or September, but it now appears that the hearing will finish this afternoon and those dates will not be required.

7. The evidence does not identify, at least in any precise way, the initial grounds for the Secretary’s application, or the issues which have arisen in the course of the proceedings. It seems, however, that one of the Secretary’s contentions was that Mr Hariz had been engaging the children in antisocial activity, and was physically and psychologically abusing them.

8. Mr Hariz asserts that such contentions are baseless. He alleges that they overlap with criminal charges which were brought against him in the District Court and which were later withdrawn or dismissed. Mr Hariz professes to believe that the Secretary’s conduct in pursuing the application in the Children’s Court is a form of “payback” for his beating the criminal charges. It is hardly necessary to say that there is no foundation whatsoever in the material before the Court for any such belief.

9. In December last year Mr Hariz commenced proceedings in this Court challenging the interim care order. Those proceedings came before the Court on a number of occasions, before an application was made by the Secretary to have them summarily dismissed. That application came before Sackar J on 15 April and a summary dismissal order was made: Hariz v Department of Communities & Justice [2021] NSWSC 519.

10. Mr Hariz brought appeal proceedings against Sackar J’s decision. He then made an application by way of notice of motion to have the Children’s Court proceedings stayed pending the determination of the appeal. That application came before McCallum JA on 17 May and was refused: RH v Secretary, Department of Communities & Justice [2021] NSWCA 101.

11. The dismissal of the motion did not, of course, result in the appeal proceedings themselves being dismissed. Apparently there is to be a hearing (presumably an application for leave to appeal) later this month.

12. The immediate cause for the present proceedings was an attempt by Mr Hariz to subpoena documents from the NSW Police Service. The Commissioner of Police seems to have appeared in the Children’s Court to object. It is not clear from the evidence whether Mr Hariz actually issued subpoenas which were then set aside, or he applied for leave to issue subpoenas which was refused. Either way, as a result of a decision by the Magistrate, Mr Hariz has been unable to compel the production of the documents which were sought.    

13. Mr Hariz asserts that the decision was wrong. He alleges that it is “on the cards” that the documents he seeks from the police would, in some way, assist him to make his case in the Children’s Court proceedings. He also complains that, perhaps in a separate decision, the Magistrate refused him an adjournment to allow him time to read and understand some documents which were produced to him.

14. As I have indicated, there is no evidence which would allow me to identify more precisely what the nature of Mr Hariz’s application was, except to say that in some way not specified in the evidence Mr Hariz appears to have been seeking to find out more information about various reports of significant harm which derived from information supplied by third parties (apparently including the police) and which form part of the Secretary’s case in the Children’s Court proceedings.

15. Furthermore, I know nothing about the Magistrate’s decision itself. I do not have the terms of the subpoena or, perhaps, subpoenas. I do not know what the grounds of the Magistrate’s decision were. Nor do I even know when the decision or decisions were made.

16. The present matter was first drawn to the Court’s attention last Friday when Mr Hariz approached Ward CJ in Eq who was then sitting as Duty Judge. Her Honour was apparently told that the application was urgent because the Children’s Court proceedings, which are taking place at Parramatta, were to continue at 10.00 am on Monday. Her Honour made arrangements for the matter to be listed before me at 9.00 am on that day.

17. On Monday at 9.00 am, there was an appearance from Mr Hariz and also from counsel representing the Secretary, although proceedings in this Court had not at that stage been commenced. Mr Hariz sought to have me make an order staying the Children’s Court proceedings, but I was not prepared to do that without having a proper opportunity to consider such material as Mr Hariz wished to rely upon and to allow the Secretary’s legal representatives to do so likewise.

18. I therefore granted leave for Mr Hariz to file his originating summons and made directions for him to swear and serve his affidavit and other evidence on which he wished to rely by Wednesday, and fixed the hearing before me at 9.00 am today. I also directed that Mr Hariz serve his summons, affidavit and other evidence on the legal representatives of the Commissioner of Police.

19. These directions were made with the consent of Mr Hariz. He informed me that he had arranged legal representation and expected to have a barrister represent him at today’s hearing.

20. The matter returned to Court today in accordance with the directions. Mr Hariz continued to appear for himself. He informed me that the counsel he had lined up had declined to appear on the application. Both the Secretary and the Commissioner were represented by counsel.

21. Mr Hariz had not sworn his affidavit, and the three volumes of documents upon which he had wished to rely had not been provided in accordance with the timetable which I had fixed on Monday. It seems that those documents were emailed as more than 50 separate PDF documents between 4.00 am and 6.00 am this morning. Quite understandably, the legal representatives of the Secretary and the Commissioner had no opportunity to consider them. For this reason, I declined to receive Mr Hariz’s affidavit or the three volumes in evidence.

22. Although there was no formal notice of motion, it became clear that Mr Hariz’s application was for me to make an interlocutory order staying the Children’s Court proceedings pending a full hearing in due course on his challenge to the Magistrate’s interlocutory decision or decisions.

23. Mr Hariz handed up some written submissions, which I understood him to say had been prepared, at least in part, with the assistance of counsel. I have briefly looked at the submissions, but they are not directed to the specific issues which arise on this application. To the extent that they deal with the merits of Mr Hariz’s challenge, they lack specificity inasmuch as they do not indicate clearly what the Magistrate’s decision was and why it is said that the particular decision was wrong. I have found them of no assistance in resolving this particular application.

24. Mr Hariz’s substantive application faces difficulties. In the first place, its jurisdictional basis is unclear.

25. Under the Children and Young Persons Act, any appeal from the final decision of the Children’s Court goes to the District Court. Mr Hariz’s summons is in the form of a summons commencing an appeal or seeking leave to appeal under Part 50 of the Uniform Civil Procedure Rules 2005 (NSW). That is a procedure which is available when there is a statutory right of appeal to this Court from a decision of an inferior Court or tribunal. But Mr Hariz was unable to point to any statute giving a right of appeal from an interlocutory decision of the Children’s Court in care proceedings of the present type.

26. Mr Hariz acknowledged this difficulty. He fell back on the Court’s parens patriae jurisdiction and its prerogative relief jurisdiction under the Supreme Court Act 1970 (NSW), s 69.

27. It seems to me very doubtful that the Court’s parens patriae jurisdiction is engaged. The particular decision in question is not one which has any direct effect on the welfare of Mr Hariz’s children. It is an interlocutory decision by the Children’s Court in proceedings in which care orders are sought, and that is all.

28. Even if the Court’s parens patriae jurisdiction is engaged so that the jurisdiction is available, it is questionable whether it would be proper for the Court to exercise that jurisdiction. That appears clearly from the decisions of both Sackar J and McCallum JA. As McCallum JA pointed out, the settled practice of this Court is not to exercise the parens patriae jurisdiction so as to interfere with pending proceedings in, or decisions of, specialist courts concerned with the welfare of children: RH v Secretary, Department of Communities & Justice [2021] NSWCA 101 at [3].

29. In the time available, I have not had the opportunity to consider whether prerogative relief under s 69 would be available. But even if it were, the exercise of the Court’s power under s 69 would be problematical in the present case where the Parliament has specifically provided for appeals in final decisions in care matters to go to the District Court, and has made no provision for appeals from interlocutory decisions.

30. It is of course clear that if, as Mr Hariz contends, any decision of the Magistrate has deprived him of natural justice, or has otherwise been attended by jurisdictional error, then that would be an available ground of appeal in any challenge to the care order in the District Court.

31. There are also great difficulties with the merits of Mr Hariz’s challenge. As I have mentioned, I do not even know what the precise decision or decisions were or what the grounds for it or them were. I am not in a position therefore to make any evaluation of the prospects of Mr Hariz’s success. I certainly cannot conclude, at this point, that the challenge has any substance.

32. There are also discretionary considerations against the grant of interlocutory relief. A preliminary point is that, as I have already stated, I do not know when the decisions were made. I therefore cannot be satisfied that this application for a stay was made in a timely fashion as would be required for an application of its type.

33. There is also the fact that this is the second application for a stay and the earlier application was refused. Although it may be that the grounds for this application differ from those that were made to McCallum JA, that is not clear on the evidence.

34. Most importantly for discretionary purposes, there is the current state of the Children’s Court proceedings. The Children and Young Persons Act requires that before a care order can be made the Children’s Court must be satisfied, in general terms, that the children are at risk. I was informed, without any dispute, that the Children’s Court adopts the practice of conducting an application of the present kind in two stages. The Court first considers whether it is satisfied that the statutory criterion is satisfied, and then goes on at the second stage to decide what orders to make.

35. Apparently, the Magistrate in the present case has followed this approach. I was informed that on Monday afternoon his Honour pronounced himself satisfied that the criterion was indeed met and indicated he would move on to the second stage, which he intends to complete this afternoon. I interpolate that it seems that following the hearing on Monday morning, and my refusal at that stage to make such an order, Mr Hariz decided not to attend the Children’s Court hearing any longer.

36. What this means is that while no final order has yet been made, the Children’s Court has passed beyond the stage to which the documents sought from the NSW Police by Mr Hariz would arguably be relevant. Furthermore, the Court is close to making a final order, at which point Mr Hariz’s statutory right to appeal will be available.

37. If I were to stay the Children’s Court proceedings, as Mr Hariz asks, the hearing could not be completed and there would inevitably be a further adjournment, perhaps of several months, before the completion of the hearing and the institution of any appeal. It seems to me that it is very much in the interests of the children who are the subject of the application that it should be resolved, and, if the order is to be challenged, for the challenge to be instituted, with as little further delay as possible.

38. Mr Hariz asserted that he personally has been placed in an impossible and unfair position by what has happened in the Children’s Court. He pointed out that he had been deprived of access to his children for 15 months. In the course of the hearing he asserted that the District Court has a waiting list for hearings of nine months. He presented the case as one of gross injustice in which he has been wrongfully, and indeed spitefully, kept from his children by the machinations of the Department.

39. But it is clear that Mr Hariz has had a full opportunity to participate in the Children’s Court proceedings. His decision to withdraw from those proceedings has been his own. There is in fact no evidence that an appeal would take nine months, but even if there were, that would make no difference. The Parliament has prescribed the procedure and it is not for this Court to second-guess that decision.

40. Mr Hariz has failed to persuade me that I should take the extraordinary step of intervening in the Children’s Court proceedings, even if I have power to do so. The application must be refused.

(Parties addressed on costs)

41. Mr Hariz resisted an order for costs. He made two points. First, he said that the application, although unsuccessful, had not been a waste of the Court's time or otherwise an abuse of its process. It had been made in good faith. Second, he stated that he was in a dire financial position and the making of an order for costs against him would result in hardship.

42. The usual rule, in an application of this sort, is that costs follow the event unless there is good reason to make some other order. The making of a costs order is not punitive in nature. It is not designed to punish the unsuccessful party for bringing the application and it is not confined to circumstances in which the application was unsound. In the ordinary course of every piece of litigation someone must lose; in our system, generally it is the loser who pays the costs.

43. The Court's focus in an application of the present kind is not upon the good faith of Mr Hariz in bringing the application; that good faith is not in doubt. The focus is on the Secretary who, as the decision of the Court has revealed, has been unnecessarily put to expense in meeting an application which has ultimately been unsuccessful.    

44. Furthermore, and for similar reasons, financial hardship resulting from a costs order could rarely, if ever, be a factor against ordering an unsuccessful party to pay the costs of an application. I do not think there is anything in the present case to justify a departure from the Court's usual order.

45. The orders of the Court are:

1. On the application (made orally) for a stay of the Children’s Court proceedings pending the hearing of these proceedings:

1. order that the application be dismissed;

2. order that the plaintiff pay the defendants’ costs of the application.

2. I order the proceedings be listed before the Registrar on 1 July 2021 for directions.   

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Decision last updated: 15 June 2021