Potkonyak v Attorney General of NSW

[2019] NSWSC 987

Supreme Court

New South Wales

Medium Neutral Citation:

Potkonyak v Attorney General of NSW [2019] NSWSC 987

Hearing dates:

2 August 2019

Date of orders:

07 August 2019

Decision date:

07 August 2019

Jurisdiction:

Common Law

Before:

Fagan J

Decision:

Summons dismissed summarily pursuant to r 13.4, with costs.

Catchwords:

CIVIL PROCEDURE – summary dismissal of proceedings– where only declaratory relief sought – no standing – no extant controversy between any parties capable of being resolved by declarations sought – proceedings dismissed

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW)
Civil Procedure Act 2005 (NSW)

Cases Cited:

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10
Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 68 FCR 406; (1996) 139 ALR 663
Re Alastair [2006] NSWSC 411

Category:

Procedural and other rulings

Parties:

George Potkonyak
Attorney General of New South Wales - first defendant
Secretary, Department of Communities and Justice - second defendant
Legal Aid NSW - third defendant
Children’s Court of New South Wales, sixth defendant

Representation:

Counsel:
N/A - plaintiff
D Birch - first defendant

Solicitors:
P Potkonyak -self represented plaintiff
Crown Solicitors Office - defendants

File Number(s):

2019/187576

Publication restriction:

No

 Decision under appeal 

File Number(s):

2019/187576

Judgment

1. This is an application by the first defendant pursuant to r 13.4 of the Uniform Civil Procedure Rules (“UCPR”) for summary dismissal of the plaintiff’s amended summons. The plaintiff is a former solicitor. By prosecuting the summons he seeks to ventilate his strongly held views about the manner in which the Children’s Court deals with applications for care orders under Ch 5 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“Care & Protection Act”). On 19 July 2019 the proceedings were dismissed by consent as against the fourth and fifth defendants, the New South Wales Bar Association and the Law Society of New South Wales. The first defendant, the Attorney General, seeks dismissal as against all remaining defendants being, in addition to himself, the Secretary of the Department of Family and Community Services (“Secretary” and “Department”), Legal Aid New South Wales and the Children’s Court.

2. The amended summons claims only declaratory relief. Declarations are sought in paragraphs 1 and 2 with respect to what the plaintiff asserts are unlawful practices of the Children’s Court. In paragraphs 3 and 4 the plaintiff seeks declarations as to alleged constraints that should be observed by the Children’s Court in making certain orders under the Care & Protection Act. Declarations claimed in paragraphs 5 and 6 concern admissibility of evidence and requirements of procedural fairness in Children’s Court proceedings.

3. By his summons the plaintiff purports to have commenced representative proceedings under Pt 10 of the Civil Procedure Act 2005 (NSW). He asserts that he represents a group of persons who all have claims arising out of similar circumstances concerning the making of care orders in the Children’s Court. He says he has the names of 50 such persons “who have become aware of this action and who have consented to their names being recorded as the group members”. He asserts that there are thousands more group members, comprising parents and grandparents of children who have been the subject of care orders made under circumstances involving the alleged legal irregularities to which the six declarations are directed.

Grounds upon which summary dismissal is sought

4. In applying for summary dismissal the first defendant contends, first, that the Court would not entertain this claim for purely declaratory relief because there is no controversy between the parties that could be resolved by the Court making the declarations. The defendants submit that persons affected by care orders of a final nature may apply to the Children’s Court for variation or rescission of such orders under s 90 of the Care & Protection Act. Alternatively they may appeal under s 91 of that Act to the District Court. Persons affected by interim care orders made under s 69 of the Act may apply to this Court for judicial review. It is submitted that in the absence of any such proceedings for reconsideration of particular care orders there is no controversy between the putative group members and the defendants, or anyone else, that could be resolved by declarations about the procedure under which care orders are made.

5. This first ground of the summary dismissal application invokes the limitation upon the courts’ power to grant declaratory relief summarised in the judgment of Mason CJ, Dawson Toohey and Gaudron JJ in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 at 581-582:

It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which "(i)t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise." Forster v Jododex Aust Pty Ltd (1972) 127 CLR 421; [1972] HCA 61, per Gibbs J at p 437. However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. See In re Judiciary and Navigation Acts (1921) 29 CLR 257; [1921] HCA 20. The person seeking relief must have "a real interest" (Forster v Jododex Aust Pty Ltd, per Gibbs J at p 437; Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438, per Lord Dunedin at p 448) and relief will not be granted if the question "is purely hypothetical", if relief is "claimed in relation to circumstances that (have) not occurred and might never happen" (University of New South Wales v Moorhouse (1975) 133 CLR 1; [1975] HCA 26, per Gibbs J. at p 10) or if "the Court's declaration will produce no foreseeable consequences for the parties" (Gardner v Dairy Industry Authority (NSW) (1977) 18 ALR 55, per Mason J at p 69; see also per Aickin J at p 71).

6. In Aussie Airlines Pty Ltd v Australian Airlines Ltd(1996) 68 FCR 406; (1996) 139 ALR 663 at 670 to 671 these principles were restated by Lockhart J, (Spender and Cooper JJ agreeing) as a list of prerequisites to the standing of a party to seek and obtain declaratory, relief as follows:

[1] The proceeding must involve the determination of a question that is not abstract or hypothetical. There must be a real question involved, and the declaratory relief must be directed to the determination of legal controversies: In re Judiciary and Navigation Acts (1921) 29 CLR 257. The answer to the question must produce some real consequences for the parties.

[2] The applicant for declaratory relief will not have sufficient status if relief is "claimed in relation to circumstances that [have] not occurred and might never happen": University of New South Wales v Moorhouse (1975) 133 CLR 1 at 10 per Gibbs J; or if the court's declaration will produce no foreseeable consequences for the parties: Gardner v Dairy Industry Authority New South Wales (1977) 52 ALJR 180 per Mason J at 180 and per Aickin J at 189.

[3] The party seeking declaratory relief must have a real interest to raise it: Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 per Gibbs J at 437 and Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 per Lord Dunedin at 448.

[4] Generally there must be a proper contradictor: Russian Commercial and Industrial Bank at 448; and Ainsworth per Brennan J at CLR 596.

7. With reference to prerequisite [2], the first defendant’s case is that the declarations sought by the plaintiff concerning the manner in which care proceedings in the Children’s Court should be conducted according to law, could only lead to determination of a controversy in the context of an application for variation or rescission of a care order, an appeal to the District Court or an application to this Court for judicial review. The first defendant submits that any such attempt to overturn a care order is a “circumstance that [has] not occurred and might never happen”. Hence, if the declarations were made in these proceedings they “will produce no foreseeable consequences for the parties”.

8. With reference to prerequisite [3], the first defendant argues that the plaintiff has “no real interest to raise” the subject matter of the claimed declarations. It is common ground that he has not been a party to any proceedings in the Children’s Court and has not been affected by any care orders made. Therefore, the first defendant argues, he cannot be materially concerned in any ground of illegality or invalidity that may have vitiated any such order and he has “no real interest” in the declarations sought.

9. The first defendant further contends that the summons is not properly constituted as a representative proceeding under Pt 10 of the Civil Procedure Act. It is said that the plaintiff, as the purported representative party, does not have any claim of his own against the defendants arising from the alleged misapplication of the Care & Protection Act. As the plaintiff does not assert that he has ever been a party to any proceeding in the Children’s Court, he therefore could have no dispute with the Secretary or the Department or with the other defendants arising out of any such proceedings. The first defendant refers to ss 157(1) and 158(1) of the Civil Procedure Act, from which it is clear that a representative party must have a claim in his own right against at least one of the defendants to a representative proceeding.

The Care & Protection Act

10. For the purpose of placing in context the above submissions of the first defendant, it is necessary to summarise briefly the aspects of the Care & Protection Act with which the declarations sought by the plaintiff are concerned. A “care order” is defined in s 60 as an order under Ch 5 “for or with respect to the care and protection of a child or young person”. A child is defined as a person under 16 years and a young person is a person aged above 16 years but under 18 years. The Act refers to “child and young person” in most of its provisions but I will paraphrase the provisions using only to the term “child”, for brevity.

11. Chapter 5 is entitled “Children’s Court proceedings”. This includes Pt 4 entitled “Care applications”, comprising ss 60-91. The care orders that may be made include orders for the provision of support for a child (s 74); orders to ensure that a child participates in a treatment program (s 75); orders placing a child under the supervision of the Secretary (s 76) and so on. Importantly, under s 79 the Children’s Court may make an order allocating all aspects of parental responsibility for a child to one parent, to the Minister, to one or more suitable persons or to any combination of these.

12. Proceedings for a care order are instituted by the Secretary filing an application in accordance with s 61. A Practice Note was issued in amended form on 30 June 2017 by the President of the Children’s Court, his Honour Judge Johnstone. According to the Practice Note, when an application is first listed before the Court leave may be granted to the parents to file evidence in reply within 24 days. The proceedings will be adjourned for no longer than four weeks, within which time the Secretary is required to prepare and serve upon other parties a summary of a proposed plan for care of the child. At this first listing an interim care order may be made.

13. Section 69 empowers the Children’s Court to make an interim care order without having first made any determination of whether the child is “in need of care and protection”. The Court can only make a care order on a final basis once it has satisfied itself as prescribed by s 71 and s 72. Section 71 provides, so far as presently relevant, as follows:

71 Grounds for care orders

(1)   The Children’s Court may make a care order in relation to a child or young person if it is satisfied that the child or young person is in need of care and protection for any reason including, without limitation, any of the following:

(a)   there is no parent available to care for the child or young person as a result of death or incapacity or for any other reason,

(b)   the parents acknowledge that they have serious difficulties in caring for the child or young person and, as a consequence, the child or young person is in need of care and protection,

(c)   the child or young person has been, or is likely to be, physically or sexually abused or ill-treated,

(d)   subject to subsection (2), the child’s or young person’s basic physical, psychological or educational needs are not being met, or are likely not to be met, by his or her parents or primary care-givers,

(e)   the child or young person is suffering or is likely to suffer serious developmental impairment or serious psychological harm as a consequence of the domestic environment in which he or she is living,

(f)   in the case of a child who is under the age of 14 years, the child has exhibited sexually abusive behaviours and an order of the Children’s Court is necessary to ensure his or her access to, or attendance at, an appropriate therapeutic service

14. Section 72 enables the Children’s Court to make a care order, even though the child may not be presently in need of care and protection, if the child was in such need at the time when the circumstances that gave rise to the application occurred, or if the child would be in such need but for the existence of interim arrangements under the Act.

15. It is apparently a routine practice of the Children’s Court to make a final determination of the threshold question raised by ss 71 and 72, namely, whether the Court “is satisfied that the child or young person is in need of care and protection”, as a separate and preliminary question. This is done at an early stage of proceedings, within weeks after the first listing of an application. The hearing at which this separate question is determined is referred to in the parlance of the jurisdiction, although not in the Act, as an “establishment hearing”. It appears to be common that an interim care order will have been made under s 69 at the first listing and will therefore be in force when the establishment hearing takes place.

16. If the Children’s Court reaches the requisite satisfaction under ss 71 and 72 then the proceedings are adjourned to enable a permanent plan for the care and protection of the child to be prepared, as required by s 83. If the Secretary assesses that there is a realistic possibility of the child being restored to his or her parents within a reasonable period, the plan is required to provide for that. Otherwise, the plan must propose a suitable long-term placement of the child. At a subsequent date, when a s 83 plan is available for consideration by the Court, the hearing of the application for a care order is resumed and the Court then determines the precise terms of a final order. This subsequent hearing is apparently referred to as the placement stage of the proceedings. In it, the earlier determination under ss 71 and 72 is not revisited but is treated as having been final.

17. In the meantime, an interim order under s 69 will commonly have continued in force. The plaintiff asserted from the bar table, without contradiction by counsel for the first defendant, that the hearing at which a care plan is considered and following which care orders are made on a final basis usually takes place in the order of 12 months after the establishment hearing. During that delay the only avenue of review or reconsideration of the interim order is by application to this Court for judicial review on administrative law grounds.

18. After a care order has been made it is open to affected parties including the child’s natural parents to apply to the Children’s Court under s 90(1) of the Act for leave to seek rescission or variation of the order. Pursuant to subs (2) the Court “may grant leave if it appears that there has been a significant change in any relevant circumstances since the care order was made or last varied”. It was common ground between the parties before me, and with respect it appears to be correct, that the statute does not expressly provide for leave to apply for rescission or variation of a s 69 interim order. Section 91, concerning appeals to the District Court, expressly excludes appeals against s 69 interim orders.

19. The nature of a s 91 appeal to the District Court against a final care order is prescribed in subs (2) as follows:

91(2)   An appeal is to be by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence on which the order was made, may be given on the appeal.

Section 91 provides that the District Court may confirm, vary or set aside the decision of the Children’s Court

20. The above summary of the manner in which applications for care orders are dealt with in the Children’s Court accords with the understanding arrived at by Kirby J in Re Alastair [2006] NSWSC 411 at [61]-[73].

Absence of controversy between any parties

21. Broadly the declarations sought by plaintiff are concerned with the nature of the material upon which it is permissible for the Children’s Court to rely when deciding whether a child is in need of care and protection, as required by ss 71 and 72. If the plaintiff’s summons should proceed he would contend that it is not sufficient for the Children’s Court to act upon consent given by the child’s parents at the establishment hearing, especially if their consent is expressed to be “without admissions” (declaration 1). The plaintiff would assert that the Court’s satisfaction cannot be reached “on submissions only” (declaration 2). He would argue that reports about the risk to a child who is the subject of an application for a care order should be sworn and should be investigated by the Secretary, in exercise of powers conferred by s 30 of the Act, as a precondition to being relied upon by the Children’s Court (declaration 5). The plaintiff would assert that procedural fairness should be accorded in the establishment hearing (declaration 6). Declarations 3 and 4 are concerned with alleged consequences of failure to observe some of the procedural requirements that the plaintiff contends for under declarations 1 and 2.

22. Some of the arguments that the plaintiff would advance in support of the above declarations have been judicially considered on other occasions. For the purpose of determining the application now before the Court, it is not necessary to make any reference to the cases in which those arguments have been raised. As there is before the Court no appeal or application for judicial review with respect to a care order that has actually been made, none of the declarations sought by the plaintiff are directed to the determination of any extant legal controversy. There could never be an appeal to this Court, only to the District Court. As for judicial review, the plaintiff himself is not seeking judicial review of any care order. Nor could he, because he has never been a party to any proceedings in which a care order has been made. His only connection with such proceedings has been as a legal representative of parents or other interested parties, prior to the removal of his name from the roll of legal practitioners in 2017. None of the putative group members is seeking in this Court judicial review of a care order.

23. At some time in the future there may be a challenge to a care order by way of appeal to the District Court or an application for judicial review in this Court, in which one or more of the issues raised by the plaintiff’s proposed declarations might arise as a ground. An appeal or application for judicial review raising such a ground might be brought by one of the group members or by some other person who is in future affected by a care order. No such proceeding could ever be commenced by the plaintiff. At present the possibility of such a ground of appeal or of judicial review being raised by a person who has been affected by a care order is in the category of “circumstances that [have] not occurred and might never happen” (see prerequisite [2] quoted at [6] above). In any event, if an appeal or judicial review proceeding was pending, involving grounds to which the declarations sought by the plaintiff might be relevant, this Court would still not make the declarations but would leave the issues to be determined in the appeal or judicial review proceeding.

21. In the absence of any appeal or application for judicial review before this Court, raising the issues sought to be resolved by the declarations, the summons seeking those declarations does no more than raise general, abstract questions of law and procedure, divorced from any existing controversy between parties. This is precisely the situation in which the Court will not grant declaratory relief and in which the plaintiff has no standing to seek it. Standing of the plaintiff would depend upon him being a party to some dispute in which his rights or obligations vis-a-vis another party could be settled by the making of the declarations.

22. The first defendant’s submissions summarised at [4]-[8] above are sound and I accept them.

Orders

26. The result is that the plaintiff has no reasonable ground upon which to pursue his claim for these declarations. It is not necessary to decide the first defendant’s second point concerning the putative representative character of the proceedings. The fundamental flaw in the summons is that neither the plaintiff nor the group members as described have standing to claim the purely declaratory relief that is sought. This invalidates the entire proceeding. It does not just mean that the plaintiff lacks a cause of action that may be available to the group members so that, whilst he does not qualify as the representative under ss 157(1) and 158(1), someone else might.

27. It follows that the summons must be dismissed with costs.

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Decision last updated: 07 August 2019