Bi v Attorney-General for the State of NSW

HIS HONOUR: These proceedings were commenced by summons filed on 11 September 2020. The sole prayer for relief is in the following terms:

The balance of the summons cannot conveniently be summarised. As an understanding of its contents is arguably necessary for present purposes, it is reproduced in the Schedule to these reasons.

By notice of motion filed on 10 November 2020, the second defendant moved the Court for orders that included the following:

Ms Bi is unrepresented. Written submissions nominally filed by her in reply to the motion appear clearly to have been prepared by Mr George Potkonyak, who sought leave to appear in the interests of a group that he represents called Capellia Children Inc. Mr Potkonyak, who has legal training, made oral submissions on Ms Bi’s behalf in response to the present application. Ms Bi’s submissions in reply were relevantly as follows:

Ms Bi has brought what purports to be, but which is not, a representative proceeding seeking declarations as to the correct interpretation of the Children and Young Persons (Care and Protection) Act 1998. The second defendant contends that the summons should be summarily dismissed upon the basis that it discloses no reasonable cause of action and may as well amount to an abuse of process. The second defendant’s simple proposition is that there is no underlying cause of action between the plaintiffs or any of them and either of the defendants that could be resolved by the Court making the declaration sought in the summons. The second defendant relied upon the following passage from the judgment of the majority of the High Court of Australia in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 at 581-582:

To a similar effect, the second defendant referred to what was said by the Full Court of the Federal Court in Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 68 FCR 406; [1996] FCA 813 at 670-671:

The background to these proceedings would appear to be that the several plaintiffs have variously been parties to litigation concerned with the removal of their children for placement in care by the Department of Communities and Justice. To adopt the words of Fagan J in Potkonyak v Attorney General of New South Wales [2019] NSWSC 987 at [1], “the summons… seeks to ventilate… 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”. In that case his Honour summarily dismissed what purported to be representative proceedings brought by Mr Potkonyak seeking declaratory relief in relation to various provisions of the Act.

The second defendant contended before me that the declarations sought could never be granted. The claimed declarations plainly offend the principles in Ainsworth and similar authorities. The summons “does no more than raise general, abstract questions of law and procedure, divorced from any existing controversy between the parties”: Potkonyak at [24]. The position is the same here.

In my view, the declarations sought have no utility. Even though the plaintiffs may be presumed to have strong feelings about the way their cases have been decided by other courts, and whereas the strength of those views cannot be either doubted or criticised having regard to the emotional character of the issues in dispute, the relief sought in these proceedings can produce no tangible consequences: the summons is not directed to the resolution of some existing controversy between the parties.

The second defendant submitted, and I accept, that it is not the role of this Court to determine and especially not to re-determine in a factual vacuum arguments about the proper construction of the Act, or to evaluate unproven allegations concerning alleged improper practices or approaches in the Children’s Court. The present proceedings are entirely misconceived. I do not accept Ms Bi’s argument about what she has characterised as concessions somewhat curiously made by the second defendant in paragraph 2 of the motion. These parts of the summons cannot operate to save it when the whole tenor of the proceedings concerns a claim for purely hypothetical relief.

A question arose during argument before me about whether or not, if I were minded to accede to the relief sought in the motion, to grant the plaintiffs an opportunity to replead their case. Mr Potkonyak made submissions about this. Unfortunately, however, even with the benefit of those submissions, I was unable to discern any alternative way in which the present proceedings could be reformulated so as to avoid the fatal difficulties that presently confront the plaintiffs. It is inevitable in my opinion that the proceedings should be dismissed pursuant to UCPR 13.4(1).

The second defendant has sought an order for costs. In my opinion it is appropriate that I make no order as to costs. The first plaintiff, who is an obviously intelligent and articulate woman, is not legally trained and did not to my observation, and quite understandably, appear until today to have a full appreciation of the patent and fatal lack of utility of the present proceedings. It is important that Ms Bi take counsel, about the events in her own life that obviously inspire her, from sources that can reliably provide objective and clear advice before she commences proceedings that are destined to fail. Because it seems clear that she has not done so in the present circumstances, an order for costs against her seems to me to be inappropriate.