GR v Secretary, Department of Communities and Justice

1. [1]

   HIS HONOUR: These proceedings were commenced by the plaintiff on 20 June 2022 invoking the parens patriae jurisdiction of the Court seeking a raft of orders in relation to a child who was born in 2004 and is currently 17.

2. [2]

   In accordance with the usual practice of the Court that arises in protective and parental jurisdiction, the Court orders that the name of the child, the subject of the proceedings, not be published: see GR v Secretary, Department of Families, Disabilities and Community Services [2019] NSWCA 277 at [1] per Brereton JA (Emmett AJA agreeing).

3. [3]

   Without any disrespect and for the purposes of consistency in the various reasons for judgement that have previously been published I will refer to the plaintiff as “GR”, the first defendant being the Secretary, Department of Communities and Justice (DCJ) as the “Secretary”, the second defendant who is the Minister for Families, Communities and Disability Services as the “Minister”, the third defendant who is the father of the child as “BB” and the fourth defendant the child as “AB”.

4. [4]

   On Monday 25 July 2022, I commenced sitting as Duty Judge the Equity Division. As from Monday 1 August 2022 Lindsay J is rostered as Duty Judge.

5. [5]

   On 26 July 2022, GR commenced a series of email correspondence with my Associate requesting a listing of these proceedings before myself as Duty Judge and providing various forms of notices of motion and a draft further amended notice of appeal.

6. [6]

   Having regard to the procedural history of the matter, which I will outline below, orders of the Court which require GR to have leave to list, and delay in providing lack of clarification regarding relief being sought, I declined after 4PM on 29 July 2022 (the last weekday of my allocated time for sitting as Duty Judge) to list the matter as requested.

7. [7]

   There is long-standing authority addressing the obligation to give reasons for judgment for decisions.

8. [8]

   The extent of a judge's duty to state reasons for a decision is related to the function to be served by the giving of reasons, the nature of matter (including whether it relates to a matter of practice and procedure or discretionary decisions such as giving expedition), and the practical effect on the rights of the parties: see e.g. Apps v Pilet (1987) 11 NSWLR 350; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247.

9. [9]

   When a decision is made, it is necessary that there be clarity as to when that occurs: Gibson v Director of Public Prosecutions (NSW) (No 2) (2021) 105 NSWLR 434; [2021] NSWCA 218 at [20].

10. [10]

    Legislative provisions may permit judgments to be delivered other than in open court. However generally speaking formal judgments should be given in open court where it is practicable to do so: Gibson v Director of Public Prosecutions (NSW) (No 2) at [19] (Bell P); [47]-[53] (Basten JA); [64] (Meagher JA).

11. [11]

    In this case I made a decision twice between 4 PM and 4:30 PM on 29 July 2022 to decline to list the matter.

12. [12]

    These are the reasons for that determination.

Some background regarding GR and AB

1. [13]

   AB has been diagnosed with autism spectrum disorder, avoidant/food intake restrictive disorder and juvenile idiopathic arthritis.

2. [14]

   The manager and caseworker for AB is Ms Eldridge who is employed by DCJ within the metropolitan intensive support services (Metro ISS).

3. [15]

   Details of AB's medical conditions and history of applications made by GR in relation to AB are recited in a number of judgments of this Court, including in the decision of Ward CJ in Eq (as her Honour then was): see GR v Secretary, Department of Communities and Justice [2020] NSWSC 739.

4. [16]

   AB was first assumed into care by the Secretary pursuant to the provisions of s 44 Children and Young Persons (Care and Protection) Act 1998 (NSW) (Care Act).

5. [17]

   Parental responsibility has been allocated to the Minister pursuant to s 79(1)(b) of the Care Act.

6. [18]

   Following a lengthy hearing in November 2019 and January 2020 in the Children's Court, further orders were made in relation to AB.

7. [19]

   Since that time GR has filed numerous applications in relation to AB before the Court.

8. [20]

   A measure of the extent of the litigation that has been embarked upon is indicated by the fact that since July 2019, by reference to the NSW Caselaw website, there are seemingly 27 published judgments in relation to various applications by GR and/or in connection with AB both before judges of this Court at first instance and the Court of Appeal.

9. [21]

   The latest published reasons appear to be those of Brereton JA in GR v Secretary, Department of Communities and Justice [2022] NSWCA 90 on 9 June 2022.

Parens patriae jurisdiction

1. [22]

   The extent of the parens patriae jurisdiction was considered by Lindsay J in GR v Secretary, Department of Communities and Justice [2020] NSWSC 892 at [23] to [32].

2. [23]

   It is not necessary for present purposes to reflect on the nature of the substantive relief to be sought.

3. [24]

   Nonetheless, because it is evident that some of the orders sought by GR relate to different aspects of the care jurisdiction of children, it is appropriate to note that it is generally necessary to distinguish between the various types of jurisdiction the Court exercises in relation to children, when the Court is asked to exercise jurisdiction regarding children: Re Rosie [2022] NSWSC 1001 at [13].

4. [25]

   In particular, in respect of the jurisdiction of the Court exercises under the Care Act, the paramountcy principle set out in s 9(1) (that in any action or decision concerning a particular child or young person the safety, welfare and well-being of the child or young person are paramount), does not govern the exercise of the protective aspect of the Court’s parental jurisdiction: see Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206 at [39].

5. [26]

   The parens patriae jurisdiction is an extraordinary jurisdiction, not to be exercised lightly, particularly where any exercise of it may or will have the effect of circumventing or interfering with matters that are being dealt with in a specialist jurisdiction such as the Children’s Court: GR v Secretary, Department of Family and Community Services and Justice (No 3) [2020] NSWSC 259 per Kunc J at [17(1)].

Listing considerations

1. [27]

   The Court has guidelines regarding listing arrangements.

2. [28]

   Many of the guidelines are set out in the various Practice Notes of the Court. Ultimately, listing arrangements are inherently within the discretion of the Court: e.g. Minister for Immigration and Multicultural and Indigenous Affairs v WAKX (2005) 222 FCR 446; [2005] FCA 227 at [28]-[32].

3. [29]

   This includes questions as to (a) whether the matter is listed at all and when that occurs and (b) which list the matter is allocated to: e.g. Challenge Bank Ltd v Raine & Horne Commercial Pty Ltd (1989) 17 NSWLR 297 at 301-304.

4. [30]

   Considerations regarding urgent listing before a duty judge include the basis for the urgency, potential prejudice arising from a failure to list, any issues of safety or risk, whether there has been any unreasonable or unexplained delay in approaching the Court, the relative urgency of the matter in light of other matters requiring the Court’s attention, the availability of a judicial officer to hear the matter and time and resources available to the judicial officer: see e.g. Lombardi v Rider [2021] FedCFamC2F 57; (2021) 64 Fam LR 103 per Alstergren CJ at [29]-[32]. Courts accord priority to cases depending on various considerations in each given case and by carefully weighing the competing considerations including those listed above: Lombardi v Rider at [32].

Commencement of these proceedings

1. [31]

   On 20 June 2022, GR approached Kunc J for leave to abridge time for service of a proposed summons in these proceedings.

2. [32]

   The summons in support of the present proceedings was supported by an affidavit of GR affirmed 20 June 2022.

3. [33]

   The summons, apart from invoking parens patriae jurisdiction, seeks orders including:

   1. (1)

      that AB be transferred to [named] hospitals for urgent independent assessment and treatment of an alleged condition in consultation with [named medical professionals];

   2. (2)

      the treatment of AB with [specified]’s treatments be ceased forthwith and that AB be weaned off [specified medication] and (that) [specified treatment] for AB’s condition in consultation with [named medical professionals] be started forthwith;

   3. (3)

      the care order of the Children's Court of [date] be stayed;

   4. (4)

      that all treating doctors must seek consent for all treatments from GR as AB’s “legal guardian” and not from DCJ;

4. [34]

   The summons also seeks other orders relating to AB’s care and further orders including orders restraining the Secretary and the Minister from commencing or continuing any further or new actions against AB, including their application to the Guardianship Tribunal for what is described as legal and financial guardianship and orders for transfer of AB’s medical care to a different hospital.

Procedural history regarding these proceedings

1. [35]

   On 20 June 2022 Justice Kunc made the following orders:

2. [36]

   The application before Kunc J was ex parte.

3. [37]

   The following day, on the return of the application there were appearances for the Secretary, BB, and by a representative from Legal Aid on the part of AB.

4. [38]

   His Honour following a hearing made the following orders:

5. [39]

   Commencing from the following day 22 June 2022, it is evident from the Court file that GR corresponded with the Associate to Kunc J seeking various orders on an urgent basis and citing at least in one instance the fact that the Registrar would not make any urgent orders.

6. [40]

   That correspondence continued at least until 29 June 2022.

7. [41]

   On 6 July 2022, GR emailed the Registrar referring to the orders of Kunc J on 21 June 2022 seeking inter alia that the Registrar provide a sealed subpoena with leave for short service by email and a request that the matter be listed urgently by phone for alleged lack of compliance by what was described as “lack of compliance by FACS to repeated requests from Court of Appeal since 6 May and Equity since 21 June to comply with independent medical assessment of [AB]".

Context of order requiring leave

1. [42]

   It will be readily observed that order 3 of the orders made by Kunc J on 20 June precludes GR from making any urgent, interlocutory application to the Duty Judge in relation to AB without the prior leave of the Duty Judge for the time being.

2. [43]

   Order 4 made by Kunc J on that occasion provides a structure and procedural guide for how any such application may be made by GR.

3. [44]

   The necessity for GR to obtain a grant of leave for any proposed urgent interlocutory application to the Duty Judge at first blush appears exceptional.

4. [45]

   However, it arises from a background in which by early 2020 GR, generally supported by BB, had developed a pattern of making frequent, informal and obviously unmeritorious applications to the Duty Judge for the time being, generally by email to the Duty Judge’s Associate, including immediately before or during weekends, leading Kunc J to give consideration to ensuring that this Court’s own process were not being abused: GR v Secretary, Department of Family and Community Services and Justice (No 3) [2020] NSWSC 259 at [17(2)], [19].

5. [46]

   Kunc J made orders requiring leave.

6. [47]

   His Honour expressly did not make orders pursuant to the Vexatious Proceedings Act 2008 (NSW).

7. [48]

   Rather, the jurisdiction exercised by the Court sits within its inherent jurisdiction of the Court to restrain a person from making unwarranted and vexatious applications in pending proceedings: see GR v Secretary, Department of Communities and Justice [2020] NSWSC 892 at [16] citing Commonwealth Trading Bank v Inglis (1974) 131 CLR 311 at 318-320; [1974] HCA 17; see also Jones v Skyring [1992] HCA 39; (1992) 109 ALR 303 at 311; Martin v Attorney-General (NSW) [2014] NSWCA 189.

8. [49]

   The orders of Kunc J were varied by Robb J on 2 April 2020 (GR v Secretary, Department of Family and Community Services and Justice [2020] NSWSC 348) and further varied by Ward CJ in Eq on 16 June 2020: GR v Secretary, Department of Communities and Justice [2020] NSWSC 739.

Recent email correspondence from GR

1. [50]

   On 26 July 2022, GR emailed my Associate in the following terms:

2. [51]

   On 27 July 2022 a series of correspondence occurred as follows, initiated by, GR:

   1. (1)

      at 11:16 AM GR sent a further email to my Associate:

   2. (2)

      at 12:57 PM my Associate received a further email attaching a proposed notice of motion seeking extensive orders.

   3. (3)

      at 1:23 PM, GR sent my Associate a further email attaching an amended notice of motion in the following terms:

   4. (4)

      at 1:17 PM my Associate sent an email to GR (copied to the other representatives) in the following terms:

   5. (5)

      at 4:47PM, GR sent my Associate a further email attaching an draft notice of appeal in the following terms:

   6. (6)

      at 5:13 PM, GR sent my Associate a further email attaching copies of 3 judgments in the following terms:

3. [52]

   On 28 July 2022, the following email correspondence occurred:

   1. (1)

      at 9:53 AM my Associate sent an email to GR (copied to the other representatives) in the following terms:

   2. (2)

      at 9:57 AM, GR sent my Associate an email in the following terms:

4. [53]

   On 29 July 2022, as at 4PM, the last weekday of my sitting as the Duty Judge week no such reply had been received from GR.

5. [54]

   The following email correspondence then took place:

   1. (1)

      at 4:08 PM my Associate sent an email to GR (copied to the other representatives) in the following terms:

   2. (2)

      at 4:15 PM GR sent my Associate an email in the following terms:

   3. (3)

      at 4:23 PM my Associate sent an email to GR (copied to the other representatives) in the following terms:

Determination

1. [55]

   How the Court deals with an application for leave for listing where particular case management orders have required a threshold of material to be considered by the Court before listing will be granted, will depend upon the circumstances of each individual application. Sometimes, it might be possible, if not practical, to determine the application for leave without engaging prospective respondents in the process, other times respondents may need to be engaged: GR v Secretary, Department of Communities and Justice [2020] NSWSC 892 at [16].

2. [56]

   In the circumstances of this matter, beyond ensuring the other defendants were copied into the email correspondence, I did not consider it appropriate to specifically engage the other defendants in order to deal with the requests of GR.

3. [57]

   The initial proposal by GR (26 July 2022) involved a variation of the following orders:

4. [58]

   The reason for the variation both in the email dated 26 July 2022 and the email correspondence on 27 July 2022 (11:16 AM) was allegedly because the Registrar had allegedly corresponded with GR declining to relist the matter or issue subpoenas and because “facs” (presumably the Minister) had not complied with presenting AB for independent medical assessment.

5. [59]

   The 26 July 2022 email also requested that my Associate seal “the subpoenas”.

6. [60]

   The nature of the request was unclear and in particular whether what was being sought was a review of an order or series of orders made by the Registrar.

7. [61]

   The jurisdiction to review a registrar’s decision arises pursuant to s 121(3) of the Supreme Court Act 1970 (NSW) together with Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 49.19(1). The power is discretionary: see e.g. Z v Mental Health Review Tribunal (No 2) [2022] NSWCA 131 at [51]-[52].

8. [62]

   The orders were not identified. The subpoenas were not identified.

9. [63]

   The request was unaccompanied by any evidentiary material.

10. [64]

    Very quickly following the 11:16 AM email, the nature of the request varied, with GR sending an email attaching a proposed notice of motion (12:57 PM) and then an amended formal notice of motion (11:23 PM).

11. [65]

    The amended notice of motion sought relief as follows:

12. [66]

    It is apparent that the relief sought in the notice of motion goes well beyond the variation of orders 5-7 made by Kunc J on 21 June 2022 and seeks substantive relief, in accordance some of the claims for relief in the summons, and in fact extending beyond the relief in the summons.

13. [67]

    The approach of the Court in assisting an unrepresented litigant is properly understood and to be considered in the context of the Court’s obligation to ensure a fair trial according to law for all of the parties in the proceedings.

14. [68]

    In Bauskis v Liew [2013] NSWCA 297 Gleeson JA (Beazley P and Barrett JA agreeing) addressed the question of the Court's duty to unrepresented litigants in the context of procedural fairness. His Honour referring to the decision of Beazley JA (as her Honour then was) in Hamod v New South Wales [2011] NSWCA 375 at [309]–[316].

15. [69]

    A party to civil proceedings is under a duty to assist the Court to further the overriding purpose, to facilitate the just, quick and cheap resolution of the real issues in the proceedings, and, to that effect, to participate in the processes of the court and to comply with directions and orders of the Court: s 56(1) and (3) Civil Procedure Act 2005 (NSW).

16. [70]

    The statutory obligation of a party to assist the Court to facilitate the just, quick and cheap resolution of the real issues in the proceedings extends to litigants in person.

17. [71]

    For the following reasons I declined to list the matter.

18. [72]

    First, in light of the statutory obligation that I have referred to that a party to civil proceedings is under a duty to assist the Court to further the overriding purpose, it is incumbent upon an applicant to clearly identify what relief is actually being sought. It becomes very practically difficult for the Court to give proper consideration to the listing of a matter, where there is an order requiring leave for listing, in circumstances where email correspondence rapidly proposes new relief and foreshadows the prospect of changing relief.

19. [73]

    The final actual document provided at 27 July 2022 (4:47 PM) was a form of “Further Amended Draft Notice of Appeal”.

20. [74]

    The relief sought in the document is as follows:

21. [75]

    It is far from clear why such a document was provided to myself as Duty Judge. The covering email 27 July 2022 (4:47 PM) and further email (5:13 PM) sought a referral to the Court of Appeal pursuant to r 1.21 UCPR, on questions of fact and law. In particular the email of 5:13 PM foreshadowed an amendment to the earlier form of notice of motion.

22. [76]

    UCPR r 1.21 provides as follows:

23. [77]

    An order removing proceedings to the Court of Appeal can also be made where proceedings are properly assigned to the Court of Appeal and where “special circumstances” apply to appeal or stated case proceedings authorised by specific statutory provisions: see Supreme Court Act s 51(1) and (5).

24. [78]

    None of the emails provided me with any context regarding the background or reasons as to why a “Further Amended Draft Notice of Appeal” was being provided to me.

25. [79]

    A party to legal proceedings, including an unrepresented litigant, ought to assist the Court in clearly identifying the nature of relief and not leave the Court to sift through rapidly changing forms of application.

26. [80]

    That assistance was not provided to me by GR in the emails either in relation to the relief sought in respect of the notice of motion and the further amended draft notice of appeal.

27. [81]

    It is for that reason that I requested GR’s assistance to be precise about the relief that was being sought. There was significant delay in answer to that request and a response was only provided after usual Court hearing hours (4PM) had completed on the last weekday of my sitting as Duty Judge.

28. [82]

    Whilst a Duty Judge may well be called upon to sit outside usual Court hearing hours, the necessity to do so will be informed by the circumstances of the matter including relative urgency of the relief being sought, any delay in approaching the Court.

29. [83]

    The response of GR at 4:15 PM, revealed that GR had allegedly become diverted by other matters “I got busy assisting law in order full time to prepare court books in my other cases” and further sought to seek not only relief in respect of variation of orders of Kunc J, but raise the prospect of dissatisfaction with orders of the Registrar and also the prospect of relief relating to AB.

30. [84]

    The reason for delay whilst disclosed did not reveal a basis as to why the Court should immediately respond to timing of GR.

31. [85]

    Further, orders removing proceedings to the Court of Appeal are discretionary and made having regard to the jurisdictional basis I have identified above.

32. [86]

    Whilst in some cases the criteria may not be onerous, at least one purpose of the discretion is to enable a primary judge to properly filter what applications are to be removed to the Court of Appeal. At the very least, to enable that consideration to be made an applicant ought to provide the primary judge, and in particular a Duty Judge, with assistance to enable the discretion to be properly exercised. That assistance was not provided.

33. [87]

    Secondly, it is evident from the content of the emails and amended formal notice of motion that the relief sought potentially included relief relating to AB. Such relief under the existing orders of Kunc J required the material referred to in order 4 of the orders made on 21 June 2022. Whilst eventually copies of judgments were provided, not all the specified material was provided. Details as to upcoming listings relating to AB were not provided.

34. [88]

    Thirdly, the application was not supported by any evidence. Indeed, GR in the email at 5:13 PM on 27 July 2022 indicated that an affidavit would be emailed “once the matter is listed”. That indication subverts the orders of Kunc J which requires provision of an affidavit prior to the listing of the matter in order to assist whichever judge is then the current Duty Judge in giving consideration to the listing. The various forms of application sought at least some relief in relation to AB, and yet no medical evidence was provided.

35. [89]

    Fourthly, related to the necessity for the provision of an affidavit is in the context of a Duty List, order 4 of the orders made by Kunc J on 20 June 2021, provided that the affidavit evidence proposed to be relied upon include any evidence as to urgency. No such evidence was provided.

36. [90]

    For the above reasons the applications for listing were declined.