Burton v Secretary, Department of Communities & Justice (formerly Family and Community Services)

1. [1]

   THE COURT: The applicant, Mr Paul Robert Burton, seeks leave to appeal from an interlocutory decision in proceedings in the Equity Division declining his application that the proceedings be summarily dismissed: Secretary, Department of Communities and Justice v Paul Robert Burton [2021] NSWSC 1285.

2. [2]

   These proceedings have a long procedural history. The primary judge (Rein J) summarised that history at [12]-[18]. For present purposes, it is sufficient to describe the litigation in these terms. In May 2017, a young child who was suffering from complex medical conditions was taken from his parents pursuant to an order issued by the Secretary under s 43(1) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) on the basis that the child was “at immediate risk of serious harm”. Mr Burton and another man, Mr Andrew Katelaris, were present when this occurred. The child was subsequently placed in the parental responsibility of the Minister by order of the Children’s Court.

3. [3]

   In July 2017, the Secretary commenced proceedings seeking interlocutory and final injunctive orders restraining Mr Burton and Mr Katelaris from publishing, among others, material which revealed the identity of the child, the departmental case workers and treating doctors. Interim relief was granted by Rein J on 18 July 2017. Those orders were vacated, and further interlocutory orders were made by Robb J on 3 August 2018 following a judgment delivered on 23 March 2018: Secretary, Department of Family and Community Services v Burton [2018] NSWSC 371. An application for leave to appeal was dismissed: Burton v Secretary, Department of Family and Community Services [2019] NSWCA 21.

4. [4]

   In late 2017, Mr Burton and Mr Katelaris were charged with offences under s 16(1) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) and s 105(2) of the Children and Young Persons (Care and Protection) Act. Consequently, the proceedings in the Equity Division have been indefinitely informally stayed part-heard, pending the completion of the criminal prosecutions against Mr Burton and Mr Katelaris.

5. [5]

   In August 2019, Mr Burton applied for the proceedings to be dismissed. That application was refused by Robb J: Secretary, Department of Family and Community Services v Burton (No 2) [2019] NSWSC 1865. An application for leave to appeal was dismissed: Burton v Secretary, Department of Communities and Justice [2020] NSWCA 68 (Burton v Secretary (CA 2020)). Addressing two of the eight proposed grounds of appeal, Meagher and Leeming JJA said at [19]-[20]:

6. [6]

   Notwithstanding this Court’s decision in Burton v Secretary (CA 2020), in May 2021 Mr Burton and Mr Katelaris applied for a variety of relief including, a declaration that “the plaintiff has no standing before the Court to maintain this action” (prayer 2) and an order that “the matter in Equity be dismissed” (prayer 4). The Secretary filed a notice of motion on 6 June 2021 seeking dismissal of the notice of motion filed by Mr Burton and Mr Katelaris. The primary judge dismissed the notice of motion filed by Mr Burton and Mr Katelaris and ordered them to pay the Secretary’s costs of their motion and the Secretary’s motion filed 6 June 2021: [2021] NSWSC 1285 at [46].

7. [7]

   In his reasons, the primary judge referred to the child’s current circumstances at [19]-[21]. Relevantly, the Children’s Court order made in 2018 allocated all aspects of parental responsibility for the child solely to the Minister for a period of two years from that date and allocated all aspects of parental responsibility to the child’s parents after that two-year period and up until he turned 18 years of age. The child was returned to his parents care on 24 March 2019 and when the Children’s Court order ceased on 9 October 2020, all aspects of parental responsibility reverted to the parents care until the child attained the age of 18 years. The child is currently in his parents care and the family have now moved interstate.

8. [8]

   In concluding that there was no basis to dismiss the proceedings, the primary judge found that the fact that the child is no longer within the jurisdiction does not preclude the Children and Young Persons (Care and Protection) Act from having operation. That includes s 105 which is concerned with preventing the publication of details concerning a child who is, relevantly, the subject of proceedings before the Children’s Court, or who is the subject of a report under ss 24, 25, 27, 120, 121 or 122 of the Children and Young Persons (Care and Protection) Act.

9. [9]

   The primary judge rejected Mr Burton’s argument that the position had changed since this Court’s decision in Burton v Secretary (CA 2020) because at the time of that decision, although the child had been returned to his parents’ care, responsibility still remained with the Minister. The primary judge found at [31]:

Leave should be refused

1. [10]

   Mr Burton’s two proposed grounds of appeal are connected. Neither raises an issue of principle, or a question of general public importance, or an injustice which is reasonably clear: Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597 at [28].

2. [11]

   The first proposed ground of appeal is that the Secretary has no standing to seek injunctive relief relying on s 105 of the Children and Young Persons (Care and Protection) Act because the child is no longer in the parental responsibility of the Minister: see [7] above. Mr Burton repeated the submission advanced before the primary judge that the position is now factually different to that existing at the time of this Court’s decision in Burton v Secretary (CA 2020) when although the child had been returned to his parents’ care, responsibility for the child still remained with the Minister. That contention misses the point.

3. [12]

   The legislative provisions forbidding publication of names and material which will identify children in proceedings in the Children’s Court (such as s 105 of the Children and Young Persons (Care and Protection) Act) apply “after any [proceedings in the Children’s Court] are disposed of” and continue to apply until the child attains the age of 25 years, or dies, which ever first occurs: ss 105(1) and (2).

4. [13]

   Mr Burton’s second proposed ground of appeal is that s 105 of the Children and Young Persons (Care and Protection) Act has no operation and cannot be used by the Secretary to maintain an application for injunctive relief when the child has been fully restored to the parents. Again, that contention misses the point.

5. [14]

   That the child is no longer in the parental control of the Minister does not of itself prevent the continued operation of either the statutory prohibition upon publication of names and material which will identify children in proceedings in the Children Court (such as s 105 of the Children and Young Persons (Care and Protection) Act), or the availability of orders under the Court Suppression and Non-publication Orders Act 2010 (NSW). It is relevant to the discretion to grant final injunctive relief, just as is the fact that the child is no longer in New South Wales, but it is not of itself a reason for summarily dismissing the proceedings.

6. [15]

   Mr Burton has not shown that the decision below is attended with sufficient doubt to warrant reconsideration on appeal.

7. [16]

   In his written submissions, Mr Burton also complained about the costs order made by Rein J notwithstanding that there is no proposed ground challenging this order in the draft notice of appeal. The Court keeps a tight rein on interference with interlocutory orders relating to matters of practice and procedure. As observed in Findex Group Pty Ltd v McKay [2019] NSWCA 93 at [20] (Basten JA, Sackville AJA and Emmett AJA agreeing):

8. [17]

   Mr Burton’s submission is that he should not be liable for costs because he is a self-represented litigant, who is defending himself in litigation. That submission ignored that Mr Burton (with Mr Katelaris) was the active party on the unsuccessful motion to dismiss the Equity Division proceedings. The primary judge was not satisfied that there was any reason to displace the usual rule that the successful party should receive his or her costs: Uniform Civil Procedure Rules 2005 (NSW), r 42.1. Mr Burton’s submissions did not identify any reasonably arguable error in the exercise of the primary judge’s costs discretion. Leave to appeal in relation to the costs order should also be refused.

Other matters

1. [18]

   In oral argument, Mr Burton indicated that if leave to appeal is not granted, he seeks a final hearing of the Equity Division proceedings as soon as possible, rather than a continuation of the informal stay of those proceedings pending the determination of the criminal charges brought against him and Mr Katerlaris. Mr Burton said that he is not concerned about potential jeopardy to his defence of the criminal charges against him, if the civil proceedings were determined first.

2. [19]

   It is not for this Court on a leave application to give directions in relation to the conduct of the Equity Division proceedings. If Mr Burton and Mr Katerlaris seek a final hearing of those proceedings in advance of the determination of the criminal charges against him, notwithstanding the potential jeopardy to their defence of the criminal charges against them, it is open to them to make an application (by notice of motion) in the Equity Division proceedings for those proceedings to be listed for final hearing.

Orders

1. [20]

   The Court makes the following orders:

   1. (1)

      Summons seeking leave to appeal filed 14 October 2021 be dismissed.

   2. (2)

      Applicant to pay the respondent’s costs.