SH v Department of Communities and Justice

1. [1]

   Before the Court is a referral by consent of the parties from Lindsay J made pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) for determination of a separate question prior to the resolution of the main dispute in these proceedings. The separate question is that ‘the claims for relief made in prayers 1 and 2 of the ‘Second Further Amended Summons’ filed on 25 November 2024 be heard and determined before the determination of any other questions in these proceedings’.

2. [2]

   Prayers 1 and 2 in the Second Further Amended Summons (SFAS) are:

3. [3]

   The affidavit evidence relied on by the plaintiff on this application comprised two affidavits made by him on 23 October 2024 and 7 April 2025. He was not cross-examined.

Background

1. [4]

   Set out below is a brief outline of the procedural history of the matter, which draws on the plaintiff’s affidavits, the chronology provided by the first defendant (Secretary) and the summary contained in Department of Communities and Justice (DCJ) and Dimitri and Nicholas and Sofia and Julia [2024] NSWChC 11, a decision by her Honour Judge Skinner, President of the Children’s Court (Skinner decision). In view of the non-publication order made at the hearing, these reasons adopt the same pseudonyms used in the Skinner decision.

2. [5]

   The plaintiff is the biological father of two boys, Nicholas and Dimitri. Their biological mother is the second defendant who was married to the plaintiff until their divorce in 2015. The mother holds the sole parental responsibility for Nicholas and Dimitri and they have always been in her primary care. Nicholas is 17 years of age and Dimitri is 13 years of age.

3. [6]

   In 2015 the plaintiff left Australia for Russia where he adopted two girls, Sofia and Julia, and in 2017 he brought them to Australia. Sofia is 14 years of age and Julia is 13 years of age.

4. [7]

   On 31 January 2018 an application was brought by the Department of Family and Community Services in the Children’s Court for care orders and an order allocating interim parental responsibility in respect of Sofia and Julia to the Minister pursuant to the Children and Young Persons (Care and Protection Act) 1998 (NSW) (‘Care Act’). The application was brought in consequence of charges that were laid against the plaintiff for disciplining Julia with a belt, causing abrasions. He pleaded guilty to the charge of assault occasioning actual bodily harm against Julia for which he was convicted on 5 September 2018, and was sentenced to a term of 18 months imprisonment. On 7 November 2018, the sentence was reduced on appeal to an intensive corrections order with 150 hours of community service.

5. [8]

   On 19 November 2018, final orders were made by his Honour Judge Johnstone, the then President of the Children’s Court, in respect of the two girls allocating parental responsibility to the Minister until each girl turns 18. There was no contact order or order for parental responsibility allocated to the plaintiff and in 2019 the girls were placed with their current carer. The plaintiff’s appeal from this decision was dismissed: An Adoptive Father v Minister for Family and Community Services (No 2) [2019] NSWSC 1305.

6. [9]

   In March 2018 a caseworker recorded that Sofia had made disclosures of sexual abuse by the plaintiff and in June 2018 the Secretary initiated proceedings in the Children’s Court seeking care and protection orders in respect of Nicholas and Dimitri due to concerns about the safety of the boys while in the care of their father.

7. [10]

   On 2 November 2018, the plaintiff was charged with 2 counts of sexual intercourse with a child under the age of 10 and 2 counts of indecent assault of a person under the age of 16, both sets of charges being in respect of Sofia. He has always vigorously denied any sexual misconduct against either of the girls. Following a trial in the District Court, a jury delivered a verdict of not guilty in respect of all of the charges on 3 December 2020.

8. [11]

   In the meantime, on 16 June 2020, final orders were made by the Children’s Court in respect of the two boys which provided that interim parental responsibility is shared between their mother and the Minister for an initial period of 48 months, but otherwise allocated all other aspects of parental responsibility to the mother to the exclusion of the plaintiff. A contact order was also made which provided that the plaintiff would be allowed to have supervised contact with the younger boy, Dimitri, for a minimum of 2 hours on a fortnightly basis. These orders were made in circumstances where the plaintiff conceded that there was no realistic possibility of restoration where his criminal proceedings were not yet finalised.

9. [12]

   On 11 January 2021, following the plaintiff’s acquittal of his sexual assault charges and completion of his sentence for assault, he applied to the Children’s Court under s 90 of the Care Act for rescission/variation of the final care orders in respect of the four children made on 19 November 2018 and 16 June 2020 (Final Care Orders).

10. [13]

    Under s 90(1) of the Care Act, an application for the rescission or variation of a care order may be made with the leave of the Children’s Court and under s 90(2) the Children’s Court may grant leave if there has been a significant change in any relevant circumstances since the care order was made or last varied. The plaintiff’s application was brought on the basis that there had been a significant change in circumstances since the Final Care Orders.

11. [14]

    By his application, the plaintiff sought: (a) an order providing for a regime regulating the contact between him and each of the children (contact orders); and (b) in respect of the boys, an order allocating all aspects of parental responsibility jointly to him and to the second defendant, his ex-wife, and in respect of the girls, an order that following a period of 6 months after commencement of contact if recommended by a nominated consultant psychologist, all aspects of parental responsibility be allocated to him (PR orders).

12. [15]

    The question whether leave should be granted for the application for rescission/variation of the Final Care Orders under s 90(2) was heard by Acting Children’s Magistrate Mulroney on 22 April 2022. In his decision made orally on 22 April 2022 (Mulroney decision), Mulroney CM:

    1. (1)

       refused leave for the variation of any order with respect to parental responsibility concerning any child;

    2. (2)

       refused leave to vary any order with respect to Nicholas;

    3. (3)

       granted leave for an application for contact to be pursued by the plaintiff but only with respect to Dimitri and the two girls.

13. [16]

    At the hearing before Mulroney CM, the plaintiff did not press for any care orders with respect to his eldest son Nicholas as he did not want to see his father.

14. [17]

    On 26 July 2024, after a 9-day hearing President Skinner delivered her decision on whether a variation should be made to the contact orders applying to the two girls and Dimitri for which leave had been granted. For the reasons set out in the Skinner decision, her Honour dismissed the application for contact orders with respect to the two girls but accepted that a contact order should be made in respect of Dimitri. The final orders made by President Skinner on 26 July 2024 (Ex 1) were:

15. [18]

    The plaintiff now appeals to this Court. His originating summons was filed on 6 August 2024. The persons named as the defendants were the first defendant and the independent legal representatives of Julia and Sofia. This summons was expressed ‘as an appeal in respect of the children [Julia] and [Sofia]’ and the relief claimed was:

16. [19]

    The summons has been amended three times. The first amendment was filed on 20 September 2024 and extended the relief sought to include orders in respect of the parental responsibility and care of Dimitri and added Dimitri’s legal representative as a defendant. It is clear from the plaintiff’s affidavit made on 23 October 2024 (paragraphs 14 and 15) that the amendment of the summons to include an appeal to in respect of Dimitri arose due to the plaintiff’s concern arising after the original summons was filed that the orders made by President Skinner as to his contact with Dimitri ‘were not working’.

17. [20]

    The most recent amendment of the summons is the SFAS filed on 22 November 2024 (pursuant to leave granted by Lindsay J on 18 November 2024). By the SFAS the plaintiff seeks a multitude of orders, many of which overlap. However, they can be summarised as follows:

    1. (1)

       First, he seeks orders that he be granted leave to appeal out of time the Mulroney decision (if leave is indeed needed) and for that decision to be set aside (prayers 1 and 2 set out earlier).

    2. (2)

       Second, he seeks leave to re-open the proceedings with respect to the issue of parental responsibility in relation to Dimitri and the two girls (prayers 3 and 4).

    3. (3)

       Third, he seeks an order that an appeal be allowed against the Skinner decision and for that decision to be set aside (prayers 5 and 6).

    4. (4)

       Fourth, in lieu of the Mulroney and Skinner decisions, he seeks the following (prayers 8, 9, 11 and 13):

    5. (5)

       Fifth, he seeks a variety of ancillary orders, including (a) that the Minister ensure that details of the proceedings are not discussed with the girls by any of their future carers and that he is not denigrated by the latter in front of them; (b) a declaration that he does not pose an unacceptable risk of harm to the children (prayers 10, 16 and 17).

18. [21]

    The main proceeding is now before Lindsay J, but by an order made on 14 April 2025 at the request of the parties his Honour reserved for separate determination the question of whether relief under prayers 1 and 2 in the SFAS can be granted prior to the resolution of the remainder of the proceedings. These reasons deal with that separate question.

19. [22]

    It was explained at the hearing before me that the reason for having the relief sought in prayers 1 and 2 dealt with as a separate question was to avoid the waste of time, unnecessary cost and unfairness to the defendants of dealing with the matter at the final hearing should the leave sought not be granted: cf Re M (No 6) [2016] NSWSC 170 at [203].

Jurisdiction of the Supreme Court to hear an appeal from the Children’s Court

1. [23]

   The appeal to this Court from the Skinner decision is brought under s 91 of the Care Act which provides as follows:

2. [24]

   While s 91(1) allows an appeal to the District Court, an appeal in relation to a decision (including any order or judgment) of the ‘Presidential Children’s Court’ (being the Children’s Court constituted by the President) is taken to be an appeal to the Supreme Court, and not the District Court: Children’s Court Act 1987 (NSW), s 22A and Children’s Court Regulations 2024 (NSW), r 5(1)(a), see generally Re Campbell [2011] NSWSC 761 at [5]. Consequently, and appeal in relation to the Skinner decision is required to be made to this Court.

3. [25]

   The appeal is a rehearing of the matter with fresh evidence, in which this Court exercises the power of the Children’s Court and the decision of this court is taken to be a decision of the Children’s Court: s 91(2), s 91(4) and s 91(6), see generally An Adoptive Father v Minister for Family and Community Services (No 2) at [4].

4. [26]

   I note three matters by way of background to the separate question presently before the Court. First, it is well-established that s 247 of the Care Act expressly preserves the Supreme Court’s parens patriae jurisdiction to interfere with the decision of a Magistrate in the Children’s Court: see eg Re Victoria [2002] NSWSC 647; (2002) 29 Fam LR 157 at [31]. Nevertheless, it is also clear that unless circumstances exist, where there is a statutorily prescribed process of appeal in respect of a specialised court (such as that established in s 91 of the Care Act), that process should not be disturbed by the Supreme Court through an exercise of its parens patriae jurisdiction: Re Victoria at [31], [36] cited in RC v Director-General, Department of Family and Community Services [2014] NSWCA 38 at [65]. There was no suggestion that the plaintiff seeks to engage that jurisdiction in the present case, and in any event, there are no such exceptional circumstances here.

5. [27]

   Secondly, it is also well-established that s 247 of the Care Act preserves the Supreme Court’s supervisory jurisdiction to issue prerogative relief for jurisdictional error or error of law on the face of the record pursuant to s 69 of the Supreme Court Act 1970 (NSW): BM v Director-General of Family and Community Services [2013] NSWCA 253 at [15]; VV v District Court of New South Wales [2013] NSWCA 469 at [10]. That jurisdiction must be exercised with ordinary principles of judicial review and is therefore different from the jurisdiction conferred upon the District Court under s 91(2) of the Care Act, which expressly provides that an appeal brought under that section is by way of rehearing. It is clear from the SFAS and the conduct of the plaintiff at hearing that he does not wish to seek prerogative relief in this matter.

6. [28]

   Thirdly, it is not in dispute that the Mulroney decision is an ‘order’ within the meaning of s 91(1) of the Care Act and therefore capable of being the subject of an appeal under that section: S v Department of Community Services [2002] NSWCA 151 at [52]-[55]. Such an appeal would be made to the District Court and, of course, it was not made to that court. For the reasons which follow, in my view a challenge to the Mulroney decision in this Court can only be made derivatively by a challenge to the final orders made by President Skinner on 26 July 2024.

Submissions of the parties

1. [29]

   Mr Loofs SC, who appeared with Ms Breeze for the plaintiff, submitted that the Mulroney decision is inextricably linked with the later Skinner decision, which (save for a qualification in relation to Dimitri considered below) is agreed by all parties to have been properly brought to this Court as the decision was made by a Presidential Children’s Court. He submitted that Mulroney decision could be challenged in this appeal on the basis of the long established principle that ‘on an appeal from the final order an appellate court can correct any interlocutory order which affected the final result’ (emphasis original): Gerlach v Clifton Bricks (2002) 209 CLR 478; [2002] HCA 22 at [6] (Gerlach principle); see also Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543 at 549-550 per Clarke JA and 559 per Powell JA. Since an appeal against the final orders made in the Skinner decision has been properly brought, and the orders made in the Mulroney decision is of an interlocutory nature which affected those final orders, it can be challenged as part of the appeal in respect of the final orders.

2. [30]

   Mr Anderson who appeared for the Secretary did not dispute the characterisation of the Mulroney decision as interlocutory. Instead, he proceeded on the basis that the Mulroney decision, whether final or interlocutory, was itself a decision capable of appeal under s 91. An appeal of that kind ought to have heard by the District Court and, as the time for filing that appeal under UCPR r 50.3 is 28 days from the ‘material date’ (being the date when the decision was announced or given under r 50.2), it ought to have been filed by 18 May 2022. This not having been done, separate leave is therefore required for time to be extended in order for the appeal to be brought. He then proceeded to rely on the usual factors outlined in Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 359 and Nanschild v Pratt [2011] NSWCA 85 in respect of whether an extension of time ought to be granted in these circumstances. He submitted that both the extent of the delay (being 2 years and 6 months) in bringing the appeal and the potential for prejudice to the children, who are all in delicate stages of their development and have managed to grow accustomed to not having the plaintiff bearing any parental responsibility over them, strongly militate against leave being granted.

3. [31]

   Ms Dart, counsel for the third defendant (Dimitri), submitted that the plaintiff was out of time to appeal the Mulroney decision for the same reasons advanced by the Secretary. She also submitted that the appeal from the Skinner decision in relation to Dimitri is out of time under UCPR r 50.3 because the summons was amended to include relief against the orders relating to Michael more than 28 days after the date of the Skinner decision and the final orders made by her Honour. Ms Dart then made submissions as to why leave under r 50.3 ought not to be granted.

4. [32]

   Ms Willoughby, who appeared for the secondly defendant (Dimitri’s mother), also submitted that leave for the appeal to extend to Dimitri was necessary and should not be granted.

5. [33]

   The other defendants made submissions consistent with those of the first to third defendants, opposing the relief sought in prayers 1 and 2.

6. [34]

   I observe that the amendment of the summons to extend the appeal to Dimitri was 28 days out of time and hence an application for an extension of time under r 50.3(1)(c) of the UCPR is required. Also, the amended summons needs to include an application for an extension of time under r 50.3(2) (which has not occurred). Mr Loofs SC accepts that leave is required under r 50.3 for the appeal in this Court to extend to Dimitri.

Consideration

1. [35]

   The starting point is to consider whether the order refusing leave to vary the care orders was final or interlocutory in nature. I will consider this issue in the context of the care orders made in relation to Sofia and Julia only given that leave to extend the appeal to the care orders relating to Dimitri under UCPR r 50.3 has not yet been sought or granted. It is not appropriate that I deal with the question whether such leave should be granted as it is not part of the separate question before me and procedural fairness requires that it be dealt with in a manner which allows all relevant parties to address it properly rather than, as occurred in the hearing before me, in a rushed manner ‘at the heel of the hunt’.

2. [36]

   The test for whether an order is properly characterised as final or interlocutory is not in dispute. It is whether the order ‘finally determines the rights of the parties’: see eg Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 at [25]. If an order does not do that, it must be interlocutory: Re Luck [2003] HCA 70; (2003) 203 ALR 1 at [4]. In considering this question, the Court is to have regard to the legal, rather than practical, effect of the judgment: Computer Edge Pty Ltd v Apple Computer Inc [1984] HCA 47; (1984) 54 ALR 767 at 767-768.

3. [37]

   The above principles are simple to state but difficult to apply. Indeed, that difficulty has led Lord Denning to observe that in order to determine whether an order is final or interlocutory, ‘the only thing for practitioners to do is to look up the practice books and see what has been decided on the point’: Salter Rex & Co v Ghosh [1971] 2 QB 597 at 601.

4. [38]

   In relation to the kind of order at issue, namely an order refusing leave to vary an existing care order, there is District Court authority for the proposition that such orders are interlocutory in nature: GA v Director General, Department of Human Services (2011) 12 DCLR (NSW) 324; [2011] NSWDC 57 at [23]-[24]. The issue does not appear to have been the subject of consideration by any appellate authority. It seems to me that the conclusion that a refusal of leave of this kind is an interlocutory decision is correct and as there was no apparent dispute between the parties on this point, I shall proceed on the assumption that the Mulroney decision is interlocutory in nature.

5. [39]

   The Gerlach principle permits interlocutory orders where they affect the final orders to be challenged as part of a challenge to those final orders: see eg Bowers v Northern Beaches Council & Grigull Custodian Pty Ltd [2022] NSWCA 253 at [13] per Preston CJ of LEC, with whom Kirk JA and Basten AJA agrees (holding that ‘Leave to appeal against an interlocutory decision or order may not, however, be required where a final decision is under appeal and the challenge to the interlocutory decision is a ground for challenging the final decision’ (emphasis added)).

6. [40]

   A corollary of the above, therefore, is that the Gerlach principle does not apply to situations in which a party, while ostensibly seeking to challenge final orders, nevertheless purports to separately challenge interlocutory orders along the way in a manner other than as part of an attack on the final orders.

7. [41]

   Jackson v Health Services Union [2015] FCAFC 188 is instructive in this regard. The appellant in that case sought to file two appeals which were challenged on the basis that they were incompetent. One of the objections to competency of the appeals was that many of the grounds in the notice of appeal concerned three interlocutory judgments of the Court, which required leave to be brought under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (FCA Act). No leave was sought in respect of the appeals to the interlocutory judgments. At trial, while accepting that s 24(1E) of the FCA Act allows a party to found an appeal from a proceeding from an interlocutory judgment and that the Court can take into account any interlocutory judgment in determining an appeal from a final judgment, counsel for the respondent nevertheless argued that because the form of the notice of appeal was such that the interlocutory orders were challenged on a direct basis and there was no other basis upon which the final orders were challenged, the notices was incompetent as a whole. The Court (Jessup, Griffiths and White JJ) agreed with that submission. Their Honours made the following observations (at [54], emphasis added):

8. [42]

   The principles outlined in Jackson above were recently considered by the Full Federal Court in Serco Citizen Services Pty Ltd v Parsons (2025) 310 FCR 436; [2025] FCAFC 83, a case involving an appeal from bifurcated decisions on liability and penalty at first instance. The appellant’s notice of appeal stated that it wished to ‘appeal from the whole of the judgments [on liability and penalty]’, and it did so without leave, even if the liability judgment was an interlocutory judgment (Serco at [25]). It argued that it was entitled to do so on two bases. First, it argued that since there is an appeal as of right in respect of the penalty judgment, the liability judgment could also be challenged accordingly because the latter has ‘effectively merged into’ the former. Second, it argued that because paragraph 3 of its notice to appeal from the penalty judgment (which is the final judgment) articulates a basis of appeal as resulting from the primary judge’s error in ‘ordering the Appellant pay a pecuniary penalty…. for the reasons detailed in paragraphs 1 and 2 above’, with paragraphs 1 and 2 being directed to the substance of the liability judgment, the framing of the notice of appeal in this way is sufficient to fall within the Gerlach principle such that the liability judgment could be challenged without leave.

9. [43]

   In a joint judgment, the Full Court (Collier ACJ, Needham and Wheatley JJ) unanimously rejected both these arguments. In respect of the first argument, their Honours did not accept that the doctrine of merger applied as between the two judgments. Rather, it was observed that ‘on the face of Serco’s appeal, it seeks to separately challenge the Liability Judgment, which was interlocutory, and not merely by way of contending that the Penalty Judgment was in error’ (at [30]).

10. [44]

    In respect of the second argument, their Honours held that notwithstanding Serco’s arguments to the contrary, the manner in which it drafted its notice of appeal clearly indicated that it ‘directly challenges the Liability Judgment, being the interlocutory judgment’, and because it ‘d[id] not advance the grounds of appeal by alleging error in the Penalty Judgment, which was caused by or affected by the Liability Judgment, such that the Liability Judgment affected the final result in the Penalty Judgment’, this fell outside of the scope of the Gerlach principle and leave to appeal was necessary (at [35]). Since this was not sought, the notice of appeal is incompetent.

11. [45]

    To the extent that both Jackson and Serco are founded on s 24(1E) of the FCA Act and therefore not strictly speaking applicable to the appeals to this Court, I am satisfied that that section is but a statutory reflection of the general principle outlined in Gerlach: Redvill v John Holland Group Pty Ltd (2022) 295 FCR 269; [2022] FCAFC 178 at [114], cited in Serco at [26]. On my reading of Jackson and Serco, there does not appear to be any indication that the comments made by the Full Court in those cases regarding this issue were confined to any particular feature of s 24(1E) which was materially different from that at general law. As such, I see no reason to confine the Full Court’s observations in Jackson and Serco above to situations where the FCA Act applies.

12. [46]

    In the present case, as the proceedings were commenced by way of summons and the task of this Court is only to resolve the separate question relating only to prayers 1 and 2, the nature of the grounds by which the plaintiff seeks to challenge the final orders made in the Skinner decision (and the extent to which they involve purported errors in the Mulroney decision) has not yet been made clear. Indeed, from the submissions made at the hearing, it can be expected that the challenge to the final orders of President Skinner will inevitably involve challenges to some aspects of the Mulroney decision to refuse leave to apply to vary the orders.

13. [47]

    However, it is nevertheless plain on the face of prayers 1 and 2 of the SFAS, which requests the Court to grant leave to appeal and to set aside the Mulroney decision, that they represent ‘a direct challenge against the relevant interlocutory orders made [in the Mulroney decision], rather than simply challenging them derivatively through the final judgment’ (Jackson at [54]). As in Serco, the SFAS purports to challenge both the Mulroney and Skinner decisions. However, also as in Serco, prayers 1 and 2 of the SFAS are framed as a direct challenge to the Mulroney decision on grounds that it can be set aside independently of any consideration of any error in the final judgment. Indeed, the very fact that the parties have agreed to segregate consideration of those two prayers for relief confirms that conclusion. As such, following the logic in Jackson and Serco, recourse to the Gerlach principle cannot be had with respect to the challenge to prayers 1 and 2.

14. [48]

    It is true that unlike in Jackson and Serco, the plaintiff here has sought leave to challenge the Mulroney decision. However, as noted earlier, leave to challenge the Mulroney decision directly would need to be made to the District Court rather than this Court. In the absence of any invocation of the Court’s parens patriae jurisdiction or that conferred by s 69 of the Supreme Court Act, there is thus no basis for this Court to assume jurisdiction over an appeal from orders of the Children’s Court if that appeal cannot be said to be done as part of a derivative attack on the orders of the Presidential Children’s Court under the Gerlach principle.

15. [49]

    For those reasons, since there can be no recourse to the Gerlach principle in respect of prayers 1 and 2 of the SFAS and there has been no other basis of jurisdiction identified upon which the Court is empowered to grant the relief sought in prayers 1 and 2 of the SFAS, it would be futile to grant the application for leave to appeal in prayer 1: see eg R v McGrane [2008] QCA 42 at 5 per Fraser JA (Mullins J agreeing). Accordingly, it follows that the entirety of prayers 1 and 2 will also be dismissed: see eg Nand v DPP [2016] NSWSC 85.

Further matters

1. [50]

   Notwithstanding the above conclusion, it is important to note that a refusal to grant leave to appeal in respect of the Mulroney decision does not occasion prejudice on the part of the plaintiff, whose decision not to appeal the Mulroney decision immediately after it was made was done on legal advice. That is because the refusal of leave at this stage does not preclude the plaintiff’s ability to ventilate his complaint against the Mulroney decision before Lindsay J in the main hearing. There are numerous instances in the authorities where leave has been refused for the bringing of interlocutory appeals even where (and, indeed, because) the plaintiff reserves a right to vindicate its argument by appealing the final judgment: see eg Marlin Brands Australia Ltd v Brando Aus Holdco Pty Ltd [2022] NSWCA 59 at [40] per Leeming JA (Meagher JA agreeing at [1]).

2. [51]

   As in Marlin Brands, the plaintiff will be free to argue that the Mulroney decision, in refusing leave to vary the contact and parental responsibility orders, is an interlocutory decision which bears directly upon the relief granted by President Skinner because it constrained the scope of relief which her Honour would be able to grant. Indeed, that precise argument formed the gist of the plaintiff’s argument in this Court as to why his challenge to the Mulroney decision fell within the Gerlach principle in the first place. That challenge will be heard by a specialist judge in this Division, who will then be seised of the matter in its entirety. Such an approach would then be properly characterised as being a challenge of the interlocutory orders through a challenge of the final orders within the Gerlach principle (as clarified in Jackson and Serco) in the sense described above.

3. [52]

   In my opinion, this course of action would also be far preferable as a practical matter, in a way which accords with the policy interest in avoiding the ‘unnecessary multiplication and fragmentation of proceedings’ underpinning the Gerlach principle: Gerlach at [4]-[5], citing Crowley v Glissan (1905) 2 CLR 402 at 403; [1905] HCA 13. Among other things, even if this Court were to grant the leave sought and proceed to consider the substantive question of whether the decision by Mulroney CM ought be set aside, it would have to consider matters which, as the plaintiff himself concedes, necessarily arise from the same factual matrix as and are inextricably linked to those which will be considered at the final hearing before Lindsay J. Those findings, having been made as part of an interlocutory process in the care jurisdiction, do not found instances of issue estoppel: In re B (Minors) (Care Proceedings: Issue Estoppel) [1997] 3 WLR 1, followed in Re Alistair [2006] NSWSC 411 at [81]-[83]. In those circumstances, there is a real risk that findings made by me as part of that process would be re-agitated before Lindsay J, thereby adding significant costs and delay to a matter which already has a considerably convoluted and drawn-out procedural history.

Costs

1. [53]

   When the matter was set down for hearing of the separate question, Lindsay J also made an order reserving all questions of costs. My preliminary view is that this is the appropriate order in relation to the hearing of the separate question. However, in the event that any party seeks a different costs order, I consider it appropriate to grant leave to the parties to approach my Associate within 7 days from the handing down of this decision with an agreed timetable for the making of submissions in relation to costs orders.

Orders

1. [54]

   For the above reasons, the Court orders as follows:

   1. (1)

      Refuse the application sought in prayer 1 of the Second Further Amended Summons for leave to appeal out of time.

   2. (2)

      Dismiss prayers 1 and 2 of the Second Further Amended Summons.

   3. (3)

      Costs in respect of the separate question are reserved.

   4. (4)

      If any party seeks a different order as to costs, grant leave to the parties to approach my Associate within 7 days from the handing down of this decision with an agreed timetable for the making of submissions in relation to costs orders.