[2014] NSWCA 36

RC v Director-General, Department of Family and Community Services

The proceedings be dismissed. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords

PROCEDURE - judgments and orders - right to appeal - whether notice of appeal competent

Legislation cited

Children and Young Persons (Care and Protection) Act 1998 (NSW), § 91
Supreme Court Act 1970 (NSW), § 69

Judgment

[1]
THE COURT: In these proceedings, a notice of appeal was filed on 8 July 2013. By the notice of appeal, the appellant purported to appeal from orders made by the District Court under the Children and Young Persons (Care and Protection) Act 1998 (the Care Act) on 5 July 2013. Those orders were made in a statutory appeal under s 91 of the Care Act. However, there is no right of appeal to the Supreme Court from such orders. Clearly, therefore, the appeal in these proceedings is incompetent.
[2]
So much appears to have become apparent to the appellant. By summons filed on 6 September 2013, she commenced fresh proceedings (2013/270765) seeking relief under s 69 of the Supreme Court Act 1970 in respect of the same orders of the District Court. An amended summons was filed in those proceedings on 18 September 2013. Those proceedings were heard and determined on 9 December 2013, when the Court ordered that the amended summons be dismissed. Reasons for that order were published today.
[3]
This purported appeal was listed at the same time as the s 69 proceedings. In the circumstances, the appropriate course is to order that this appeal be dismissed as incompetent. The Court will order accordingly.