Secretary, Department of Communities and Justice v KH

The Secretary of the Department of Communities and Justice sought a stay of certain orders made by the District Court in child care and protection proceedings. The District Court had found a realistic possibility of the child's restoration to the mother and had ordered the preparation of an amended care plan. The Secretary, dissatisfied with this decision, was seeking judicial review in the Court of Appeal and brought a motion for a stay of the District Court's orders pending the determination of that application.

The primary legal issue before the Court of Appeal was whether to grant a stay of the District Court's orders. This involved considering the principles governing the grant of a stay pending judicial review, particularly in the context of child protection matters where the welfare of the child is paramount. The court also had to determine whether to dispense with the appointment of a tutor for the child, BH, and instead appoint an independent legal representative.

Macfarlan JA granted the stay, effectively suspending the District Court's orders concerning the amended care plan and restoration of the child to the mother until the judicial review proceedings were resolved. The court also dispensed with the need for a tutor for BH and appointed Ms Leanne Wells as BH's independent legal representative. The costs associated with the Secretary's motion for the stay were to be determined as part of the substantive judicial review proceedings.