Bi v Attorney-General for the State of NSW [2021] NSWSC 106

Supreme Court New South Wales

Medium Neutral Citation: Bi v Attorney-General for the State of NSW [2021] NSWSC 106 Hearing dates: 18 February 2021 Date of orders: 19 February 2021 Decision date: 19 February 2021 Jurisdiction: Common Law Before: Harrison J Decision: Summons dismissed Catchwords: CIVIL PROCEDURE — summary dismissal – where plaintiffs by summons seek purely declaratory relief – whether the relief concerns the determination of a legal controversy between the parties or is directed solely to answering abstract or hypothetical questions – whether declaration will produce foreseeable consequences for the parties – proceedings misconceived – summons dismissed Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 68 FCR 406; [1996] FCA 813 Potkonyak v Attorney General of New South Wales [2019] NSWSC 987 Category: Principal judgment Parties: Nikhat Bi (Plaintiff) Attorney-General of New South Wales (First Defendant) Secretary, Department of Communities and Justice (Second Defendant) Representation: Counsel: J Davidson (Second Defendant)

Solicitors: Crown Solicitor's Office (Second Defendant) File Number(s): 2020/264738 Publication restriction: Nil

Judgment 1. HIS HONOUR: These proceedings were commenced by summons filed on 11 September 2020. The sole prayer for relief is in the following terms: "1 The entire summons seeks declaratory relief, pursuant to s 75 of the Supreme Court Act 1970, in relation to the correct interpretation of the NSW Children and Young Persons (Care and Protection) Act 1998. It also seeks declaratory relief in relation to the incorrect application of the Care Act in the courts exercising care and protection jurisdiction. Mostly major provisions of the Care Act are being addressed. References to section numbers are references to the sections of the Care Act unless otherwise stated." 1. 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. 2. By notice of motion filed on 10 November 2020, the second defendant moved the Court for orders that included the following: 1. The plaintiff's summons filed on 11 September 2020 be dismissed pursuant to UCPR 13.4(1). 2. In the alternative, the claims for relief [sic] in paragraphs 2, 3, 8, 12, 13, 14, 15, 16 and 19 of the summons be dismissed pursuant to UCPR 13.4(1). 1. 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: "2. The Secretary's notice of motion as expressed at order [2] sought by him, implies that there are 20 pleadings in the summons that, at least likely, do not fall under the r 13.4(1) of UCPR. 3. The Secretary's references to numerous decided cases, firstly, completely ignore the provisions of s 75 of the Supreme Court Act 1970 by which the Court is given power, in the exercise of its discretion, to make binding declarations whether any consequential relief is or could be claimed or not. However, the Court has not been given power to summarily dismiss the summons seeking such relief, neither to entertain an objection by the opponents on the ground of the plaintiffs seeking purely declaratory relief. 4. The Secretary's complaint about the lack of particulars of any case will be cured once the parties and the trial judge agree on the safeguards for the protection of the privacy of the plaintiffs since each plaintiff is entitled to the documents filed in the Court. Rule 13.4(1) of UCPR 5. In his notice of motion (at [1]) the second defendant ('the Secretary') seeks summary dismissal of the plaintiffs' summons pursuant to r 13.4(1) without specifying particulars on which of the three sub-rules he relies. Submission clarifies that sub-rules (b) and (c) only apply. 6. In the very next paragraph ([2]) of the notice of motion, the Secretary impliedly concedes that at least some of the pleadings in the plaintiffs' summons either: (a) are not frivolous or vexatious; and (b) disclose reasonable cause of action and (c) are not an abuse of process. Secretary's submission: No reasonable cause of action claim 7. Exempting pleading [1] in the summons since it is a general statement, out of the remaining 29 pleadings the Secretary allows possibility that 20 of them should not be summarily dismissed. The implied concession that 20 pleadings have some merit renders the arguments offered by the Secretary up to and including paragraph [8] inapplicable as far as the no reasonable cause of action claim is concerned. That puts an end to the Secretary's arguments in relation to the 20 pleadings in the summons. Declaratory relief, abstract issues and standing 8. In paragraph [9]-[18] of his submission the Secretary raises arguments based on a number of decided cases without any reference to the legislative provisions, as if we were still in the year 1821, when there was very little by way of legislation, rather than in the year 2021 where, especially as the child protection is concerned, there is nearly a complete legal code regulating that particular jurisdiction." 1. 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: "It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which '(i)t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise.' Forster v. Jododex Aust. Pty. Ltd. (1972) 127 CLR 421, per Gibbs J. at p 437. However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. See In re Judiciary and Navigation Acts (1921) 29 CLR 257. The person seeking relief must have 'a real interest' Forster (1972) 127 CLR, per Gibbs J. at p 437; Russian Commercial and Industrial Bank v. British Bank for Foreign Trade, Ltd. (1921) 2 AC 438, per Lord Dunedin at p 448. and relief will not be granted if the question 'is purely hypothetical', if relief is 'claimed in relation to circumstances that (have) not occurred and might never happen' University of New South Wales v. Moorhouse (1975) 133 CLR 1, per Gibbs J. at p 10. or if 'the Court's declaration will produce no foreseeable consequences for the parties'. Gardner v. Dairy Industry Authority (N.S.W.) (1977) 52 ALJR 180, per Mason J. at p 188; see also per Aickin J. at p 189; 18 ALR 55 at pp 69, 71 respectively." 1. 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 proceeding must involve the determination of a question that is not abstract or hypothetical. There must be a real question involved, and the declaratory relief must be directed to the determination of legal controversies: In Re Judiciary and Navigation Acts (1921) 29 CLR 257. The answer to the question must produce some real consequences for the parties. • The applicant for declaratory relief will not have sufficient status if relief is 'claimed in relation to circumstances that [have] not occurred and might never happen': University of New South Wales v Moorhouse (1975) 133 CLR 1 per Gibbs J. at 10; or if the Court's declaration will produce no foreseeable consequences for the parties: Gardner v Dairy Industry Authority (NSW) [1977] 52 ALJR 180 per Mason J. at 180 and per Aickin J. at 189. • The party seeking declaratory relief must have a real interest to raise it: Forster v Jododex Australia Pty Limited (1972) 127 CLR 421 per Gibbs J. at 437; and Russian Commercial and Industrial Bank v British Bank for Foreign Trade Limited [1921] 2 AC 438 per Lord Dunedin at 448. • Generally there must be a proper contradictor: Russian Commercial and Industrial Bank at 448; and Ainsworth per Brennan J. at 596." 1. 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. 2. 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. 3. 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. 4. 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. 5. 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). 6. 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.