Supreme Court New South Wales Medium Neutral Citation: A v Department of Communities and Justice [2021] NSWSC 937 Hearing dates: 20 May 2021 Date of orders: 30 July 2021 Decision date: 30 July 2021 Jurisdiction: Common Law Before: Garling J Decision: (1) Pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005, the whole of the proceedings as constituted by the Amended Summons are dismissed. (2) Plaintiff to pay the defendant's costs. Catchwords: CIVIL PROCEDURE – whether summons concerns any real issues in dispute between the parties – plaintiff seeking to relitigate proceedings not in accordance with the correct court rules and procedures – abuse of process – proceedings dismissed CIVIL PROCEDURE – where there are no identifiable common questions of law or fact – matter not properly constituted as a representative action – proceeding dismissed Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 Civil Procedure Act 1985 Supreme Court Act 1970 Uniform Civil Procedure Rules 2005 Cases Cited: A v Secretary, Family and Community Services (No 2) [2019] NSWSC 43 A v Secretary, Department of Communities and Justice (No.4) [2019] NSWSC 1872 A v Secretary, Department of Communities and Justice (No.5) [2020] NSWSC 1340 Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 Aussie Airlines Pty Ltd v Australia Airlines Ltd [1996] FCA 813; (1996) 68 FCR 406 GR v Secretary, Department of Communities and Justice [2021] NSWCA 99 GR v The Department of Communities & Justice and Ors [2020] NSWSC 1901 Pi v Zhou [2016] NSWCA 24 Potkonyak v Attorney General of NSW [2019] NSWSC 987 Re Alistair [2006] NSWSC 411 Texts Cited: Not Applicable Category: Principal judgment Parties: A (P) Secretary, Department of Communities and Justice (D) Representation: Counsel: Self-Represented (P) E Fitzgerald (D) Solicitors: Crown Solicitors Office (D) File Number(s): 2021/92042 Publication restriction: Plaintiff is to be described by a pseudonym "A" Judgment 1. The first plaintiff, described by the pseudonym "A", brings proceedings by a Summons ("the Summons") filed 2 April 2021, claiming orders on her own behalf, and pursuant to Pt 10 of the Civil Procedure Act 1985 for a group of individuals whom she defines in the Summons. There were other plaintiffs, one named and 16 unnamed, also joined to the proceedings in the Summons. 2. On 13 May 2021, the defendant to the Summons, the Secretary, Department of Communities and Justice, filed a Notice of Motion ("the Motion") seeking the following orders: "1. The plaintiff's Summons filed on 2 April 2021 be dismissed pursuant to Rule 13.4(1) of the Uniform Civil Procedure Rules 2005. 2. The plaintiffs pay the defendant's costs of the proceedings." 1. The Secretary also suggested that the appropriate defendant ought to be the Minister of Families and Communities ("the Minister"). It will be convenient to refer to the active opponent to the plaintiff's claims as "the Department". There is no need for the purpose of this judgment to differentiate between the defendants. 2. On 20 May 2021, when the Motion came on for hearing, A sought leave to amend the Summons in a number of ways: 1. to allow the withdrawal of the second-named and other plaintiffs from the proceedings; 2. to allow for the inclusion of the Minister as a party, and to permit the joinder of the Children's Court of NSW as another defendant; and 3. to make other more substantive changes to the Summons. 1. At the time, I determined that the most efficient course to follow, in circumstances where A appeared for herself, was to grant leave for the Amended Summons to be filed, without making any decision as to whether the proceedings were or were not properly constituted, or else whether the proceedings were of a kind in respect of which the Department's claim for summary dismissal would apply. I made that determination as it was the case that A clearly did not press the Summons, no doubt because (at the least) of its inappropriate form and content. The Amended Summons addressed the substantive issues which A wished to bring forward in these proceedings. Accordingly, I dealt with the Motion on the basis that the relief sought applied to the Amended Summons. 2. For the reasons contained in this judgment, the orders sought by the Department ought to be made. The proceedings brought by the Amended Summons filed by A on 20 May 2021, must be dismissed and she must pay the costs of the defendant. The Amended Summons 1. The Amended Summons seeks 13 separate declarations with respect to four aspects of proceedings in the Children's Court of NSW which are brought pursuant to the Children and Young Persons (Care and Protection) Act 1998 ("Care Act"). Those four aspects are described in this way in the Amended Summons: "(a) The first stage – Determination as to the care and protection; (b) The second stage – Determination of the realistic possibility of restoration; (c) Principles of intervention; and (d) Statutory appeal." 1. Nine of the declarations which are sought refer to the proceedings in the Children's Court involving the plaintiff, her husband and her two children. The other declarations are to a general effect. One declaration which is sought requires the judge hearing these proceedings to declare that the judgment of another judge of this Court in A v Secretary Department of Communities and Justice (No.4) [2019] NSWSC 1872 is invalid. 2. In addition to the 13 declarations, A seeks consequential relief with respect to her claim in the following terms: "14. The child D is restored to the care of the plaintiff and her husband under the following conditions: (a) The child D is placed under the supervision of the first defendant pursuant to s 76 for a duration as agreed between the parties, or if no agreement is reached, as the Court may determine; (b) The plaintiff gives undertakings pursuant to s 73 on terms that are not too intrusive or oppressive, as the Court determines. 15. If the plaintiff decides to make an application in the Children's Court for the rescission or variation of the care order in relation to the child C or D, or both: (a) The plaintiff would not have to prove the significant changes to the relevant circumstances as required by s 90(2); and (b) Would not have to meet the conditions of s 90, subsections (2A)‑(2E); and (c) The application will be heard as if it were a fresh application for a care order by the first defendant. 16. If the plaintiff decides to have another child, that child would not be subject to the provisions of s 106A." 1. A seeks the following relief to which she alleges the group members are entitled to: "17. Declarations as pleaded at (1) to (5) and (7) to (9), apply to each group member, save for the reference to the case specific details. 18. Declaration as pleaded at (6) apply to a significant number of members of the group whose stage 2 proceedings had been conducted since the year 2013. 19. Remaining declaratory relief applies to the significant number of the members of the group. 20. Declaration that any group member whose child has been removed subsequent to the making of the supervision order (s 76) or an order for the undertaking (s 73), on the grounds of a breach of either, and by way of the first defendant's purported application for rescission of the orders (s 90), is entitled to relief as pleaded at (15). 21. The consequential relief as sought at (15) and (16) should be available to every group member if he or she chooses to file s 90 application or to have another child." (sic) 1. Finally, A seeks a further order against the Department in these terms: "22. The first defendant is to notify the Court and the parties of any existing decision of the Court of Appeal that the first defendant considers to be an authority for one or more of the provisions of the Care Act addressed in the pleadings, for the purpose of the referral of any questions to the Court of Appeal for the final determination." 1. In the Amended Summons, the representative group, on whose behalf the Part 10 proceedings have been brought are described in this way (leaving out irrelevant parts): "Every parent whose child is subject to one or more of the orders of a court dealing with the care and protection of children under [the Care Act] is a group member for the purpose of this proceeding. The proceeding does not affect the parents whose children are currently subject to the orders of the Supreme Court made in the exercise of the Court's inherent jurisdiction." 1. The Amended Summons asserts that there are about 18,000 children in out‑of‑home care in NSW, and that on the assumption of two children (and parents) per family, there are about 18,000 members of the group. 2. The Amended Summons describes a common question of law in this way: "… every single group member is affected by the misinterpretation … of the provisions of the Care Act in relation to the determination as to the care and protection (the so-called 'establishment'), that is a crucial pivot point determination that establishes the jurisdiction of the court for the making of the final care orders." 1. There is no identification of any specific questions of fact as being common. There is an assertion that it will be possible after further material becomes available to show "… a common thread". Relevant Legislation 1. The Motion brought by the defendant is brought pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 ("the UCPR"). That rule is in the following relevant terms: "13.4 Frivolous and vexatious proceedings If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings- are frivolous or vexatious, or no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings are dismissed generally or in relation to that claim. 2. The Court may receive evidence on the hearing of an application for an order under sub-rule (1)." 1. Certain provisions of Part 10 of the Civil Procedure Act dealing with representative proceedings, need also to be set out. They are relevantly as follows: "157 Commencement of representative proceedings (1) Subject to this Part, where-- (a) 7 or more persons have claims against the same person, and (b) the claims of all those persons are in respect of, or arise out of, the same, similar or related circumstances, and (c) the claims of all those persons give rise to a substantial common question of law or fact, proceedings may be commenced by one or more of those persons as representing some or all of them. (2) Representative proceedings may be commenced-- (a) whether or not the relief sought-- (i) is, or includes, equitable relief, or (ii) consists of, or includes, damages, or (iii) includes claims for damages that would require individual assessment, or (iv) is the same for each person represented, and (b) whether or not the proceedings-- (i) are concerned with separate contracts or transactions between the defendant in the proceedings and individual group members, or (ii) involve separate acts or omissions of the defendant done or omitted to be done in relation to individual group members. … 161 Originating process (1) The originating process in representative proceedings, or a document filed in support of the originating process, must, in addition to any other matters required to be included-- (a) describe or otherwise identify the group members to whom the proceedings relate, and (b) specify the nature of the claims made on behalf of the group members and the relief claimed, and (c) specify the question of law or facts common to the claims of the group members. (2) In describing or otherwise identifying group members for the purposes of subsection (1), it is not necessary to name, or specify the number of, the group members." Legal Principles 1. The substantive relief sought by the defendant is that the proceedings be summarily dismissed. 2. Before a court can summarily dismiss a claim, the Court must be persuaded that the case for the dismissal is very clear. 3. The principles guiding the exercise of the Court's power to order summary dismissal of proceedings are clear and of long-standing. The ordinary course of litigation ought generally be allowed to take place. That is because a litigant with a proper cause of action is entitled to expect that they will not be denied the opportunity, after taking advantage of the usual interlocutory processes, to put their case before the Court for judicial determination on the merits. 4. But this ordinary expectation is not unconstrained. The rules of Court permit proceedings to be summarily dismissed in appropriate circumstances. The rules exist to balance the litigant's ordinary expectations on the one hand, with the right of the opposing party on the other hand, not to be vexed by litigation in which a proper cause of action cannot be reasonably identified, or if the proceedings are vexatious, oppressive, or an abuse of process. 5. In 2016, in Pi v Zhou [2016] NSWCA 24, Gleeson JA said at [9]: "It may be accepted that the power to order summary dismissal is one that should be exercised with great care and not unless it was clear that there is no real question to be tried. The test to be applied has been variously expressed, including: 'So obviously untenable that it cannot possibly succeed'; and 'manifestly groundless', but the underlying point is that there must be a high degree of certainty about the ultimate outcome of the proceedings if it were allowed to go to trial or a hearing in the ordinary way: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552; Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256 at [46]; Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 at [24]-[25] (French CJ and Gummow J)." 1. Another legal issue which is called up by the Amended Summons in these proceedings, is the question of whether the declarations sought constitute relief of a kind which would ever be appropriate to be given. 2. It cannot be doubted that this Court has the jurisdiction to make a declaration. Nor can it be doubted that equitable relief, including a declaration, can be given in an appropriate formulated representative proceeding: see s 157(2)(a)(i) of the Civil Procedure Act. 3. However, equally, the relevant legal principles provide that one cannot make declarations to address abstract or hypothetical questions. Declarations must be addressed to real legal controversies. 4. In Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at p.581-582, the judgment of the majority said: "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'. 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. … And relief will not be granted if the question is 'purely hypothetical', if relief is 'claimed in relation to circumstances that [have] not occurred or might never happen' … or if 'the Court's declaration will produce no foreseeable consequences for the parties' …" (citations to authorities omitted) 1. A further authority to a similar effect is that of the Federal Court of Australia in Aussie Airlines Pty Ltd v Australia Airlines Ltd [1996] FCA 813; (1996) 68 FCR 406 at 670: "● 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: … 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 the circumstances that [have] not occurred and might never happen' … or if the Court's declaration will produce no foreseeable consequences for the parties: … ● The parties seeking declaratory relief must have a real interest to raise it: … ● Generally, there must be a proper contradictor …" (authorities omitted) The Proceedings 1. As can be seen from the terms of the Amended Summons, A seeks to raise questions, sought to be answered by declarations, about the general practice and procedure in the Children's Court, or else the manner in which that Court acts when hearing applications for orders under Chapter 5 of the Care Act, including in her own proceedings. 2. A seeks to ventilate issues of generality surrounding the way in which the Children's Court exercises its jurisdiction by first determining at a separate hearing, and in advance of other matters, that the relevant child is, or children are, in need of care and protection. 3. As well, A seeks to have effectively overturned by a declaration, what is asserted to be a common practice, where parents who are the defendants to such actions consent to a finding by the Court that children are, under the circumstances, in need of care and protection, but do so "without admissions". 4. In proceeding in that way, the Children's Court is acting consistently with the decision in this Court Re Alistair [2006] NSWSC 411, where the Court identified that when it is necessary for an issue to be determined under the Act, there is a two stage process. The first is what was described as "the establishment phase", which is followed by what is sometimes termed as the "welfare phase". The establishment phase, Kirby J found, involved a determination of the need for care and protection such as to warrant the intervention of the Court. His Honour described it as a threshold issue. His Honour held that once a determination had been made on the establishment issue, then, but only then, could the Court give consideration to final orders which would safeguard the child or young person. 5. Re Alistair has stood for a long time. It has been, and is, regularly followed. It is a decision which has not been doubted. The procedure it described with respect to an "establishment phase" was followed as correct by Sackar J in GR v The Department of Communities and Justice & Ors [2020] NSWSC 1901. Leave to appeal against this aspect of the decision was refused by the Court of Appeal: GR v Secretary, Department of Communities and Justice [2021] NSWCA 99. 6. This approach does not seem to find favour with A and those whom she claims to represent. These proceedings are the vehicle that A has chosen to air her disagreement, with the asserted general practice. 7. In addition to these matters of broad application, A seeks to raise matters dealing with proceedings in which she has been involved as a party. A's Own Case 1. It appears from material put before the Court on this application that in September 2017, two of A's children were removed from her care and the care of her husband after one of the children made serious allegations of abuse against her husband. On 22 September 2017, the Children's Court ordered under the Care Act that parental authority in respect of the children be allocated to the Minister until further order. 2. Consistently with the procedure which I have earlier described, Blewitt CM in December 2017, found that the children were in need of care and protection, and in February 2018 the Department sought final orders allocating parental responsibility to the Minister. 3. In April 2018, A applied to have Blewitt CM's findings set aside. This was dealt with by another Children's Court Magistrate, Crompton CM, who declined to set aside the orders because he came to the same opinion, namely, that the children were in need of care and protection. 4. The Department then sought to pursue the application for final orders involving the appropriate welfare of the children. 5. A brought proceedings in this Court, claiming relief pursuant to ss 69 and 75 of the Supreme Court Act 1970, and also in the Court's parens patriae jurisdiction, with the aim of overturning the orders of the Children's Court that the children were in need of care and protection. 6. In a judgment delivered on 5 February 2019, Schmidt J, in this Court, for the reasons which she gave, ordered that the Summons brought by A be dismissed: see A v Secretary, Family and Community Services (No 2) [2019] NSWSC 43. 7. On 23 September 2019, the President of the Children's Court of NSW, Judge Johnston, made care orders in relation to each of the children. A sought to challenge those orders by lodging an appeal to this Court. That appeal was heard by Lindsay J, who, for the reasons which he gave, dismissed the Summons and confirmed the orders made by the Children's Court: see A v Secretary, Department of Communities and Justice (No.4) [2019] NSWSC 1872. 8. In March 2020, the Children's Court heard a further application by A to rescind or vary the care orders which had been made. The Children's Court dismissed that application. 9. On 1 October 2020, Williams J dismissed proceedings brought by A. In those proceedings, A sought that, in effect, one of the children be restored to her day‑to-day care and supervision which would have had the same effect as if A had succeeded before the Children's Court in March 2020. The Summons dealt with by Williams J also asserted that the proceedings should be transferred to the Common Law Division to continue as a representative action pursuant to Part 10 of the Civil Procedure Act. 10. For the reasons which she gave, Williams J summarily dismissed the proceeding before her as an abuse of process of the Court pursuant to r 13.4 of the UCPR: see A v Secretary, Department of Communities and Justice (No.5) [2020] NSWSC 1340. 11. A then brought further proceedings, this time against the Attorney-General of NSW, by a Summons filed on 11 September 2020. That Summons sought various declaratory relief with respect to the Care Act, and the asserted incorrect application of that Act in any of the courts which were exercising a care and protection jurisdiction with respect to children. 12. The Attorney-General moved to strike out that Summons and to have it summarily dismissed. On 19 February 2021, Harrison J made such orders for the reasons which he gave: see [2021] NSWSC 106. 13. At [10] of the judgment, Harrison J said: "… 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 [Care] Act, or to evaluate unproven allegations concerning alleged improper practices or approaches in the Children's Court." 1. The final paragraph of his Honour's judgment was in the following terms: "The first plaintiff, who is obviously an 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." 1. His Honour noted that the declarations sought had no utility, that the relief sought in the proceedings could produce no tangible consequences and that the Summons was not directed to the resolution of any existing controversy between the parties. His Honour found that the proceedings before him were "entirely misconceived". 2. By reference to the existing Amended Summons in these proceedings, and leaving aside any matter concerned with Part 10, it can be seen that there is a significant similarity of issues regarding the relief sought in these proceedings with the relief sought in the proceedings before Harrison J. 3. Curiously, although the proceedings before Harrison J were not brought under Part 10 of the Civil Procedure Act as a representative proceedings, the Amended Summons did have annexed to it a document described as "Statements pursuant to Part 10 of the Civil Procedure Act 2005". 4. There are also real similarities between the pleadings in the present matter and the claims for relief, purportedly pursuant to Part 10 of the Civil Procedure Act, which came before Fagan J in 2019: Potkonyak v Attorney General of NSW [2019] NSWSC 987. 5. On 7 August 2019, for the reasons which he then gave, Fagan J summarily dismissed those proceedings pursuant to r 13.4 of the UCPR. 6. His Honour said this at the end of his judgment: "The result is that the plaintiff has no reasonable ground upon which to pursue his claims for these declarations. It is not necessary to decide the first defendant's second point concerning the putative representative character of the proceedings. The fundamental flaw in the summons is that neither the plaintiff nor the group members as described have standing to claim the purely declaratory relief that is sought. This invalidates the entire proceeding." 1. A sought at the outset of these proceedings to have Mr Potkonyak, a lawyer whose name has been removed from the roll, make oral and written submissions on her behalf. Leave was refused. However, it is appropriate to remark that the Amended Summons, and the relief being sought, appears to owe much to the involvement of Mr Potkonyak. However, this was not relied upon by the Department as a reason for summary dismissal. Discernment 1. The declarations sought in the Amended Summons, which are numbered 3, 7, 8 and 9, are expressed to be of a general application and not limited to any proceedings brought by A. On their face, the declarations do not resolve any real issues in dispute between the parties. They address two topics: the first is what is the burden of proof as the standard of proof in proceedings for a care order. In other words, the declarations seek a statement of general legal principle unrelated to any particular issue in disputes between the parties; secondly, one declaration seeks to establish, by reference to the Care Act, what are in any proceedings taken by the Department, the relevant obligations and considerations of the Department. Again, this seeks to establish a general approach. This is not an appropriate matter for a declaration by this Court. 2. The balance of the declarations sought, namely 1 and 2, 4 to 6 (inclusive) and 10 to 13 (inclusive), all seek to address perceived inadequacies in a number of hearings of the plaintiff's proceedings in the Children's Court, and in the Equity Division of this Court, including that the declarations seek to have the decision of Lindsay J overturned as invalid, together with decision of the Children's Court. 3. In effect, the plaintiff is seeking to relitigate the various proceedings involving her, through the mechanism of these proceedings, rather than in accordance with the various procedures which are available by way of appeal or judicial review. By way of example, as previously noted, the plaintiff seeks a declaration that the decision of Lindsay J of December 2019 is invalid. As Williams J pointed out at [90] of her judgment, it was open to the plaintiff to seek leave to appeal to the Court of Appeal from the judgment of Lindsay J, but she has not done so. The other available procedures include those described by Williams J at [91]. 4. It is simply not open to the plaintiff to use the presently formulated proceedings to attack substantive and procedural issues which she asserts were wrongly addressed in previous proceedings, in respect of which establishment appeal and judicial review right exist. 5. It is clear that the purpose of these proceedings as demonstrated by the orders sought amount to an abuse of process. 6. Rule 13.4 of the UCPR exists to deal with proceedings of this kind where, upon consideration, it can be seen that a plaintiff brings the proceedings to relitigate past decisions, does not avail themselves of the appropriate avenue to seek leave to appeal, and merely seeks the opportunity of a platform to air their particular idiosyncratic views, and disenchantment with the procedures of another court. The proceedings for this reason must be dismissed. 7. Because these proceedings are brought as a representative action under Part 10 of the Civil Procedure Act, it is appropriate to also consider whether they are properly constituted under those provisions. 8. Part 10 requires, at a minimum, seven or more persons to constitute the group who have an identifiable common characteristic or characteristics. It also requires, as a minimum, that the proceedings involve identifiable common questions of law or fact. 9. The description of the group members pleaded, identifies them as every parent of a child subject to a current order of any court under the Care Act, except if the current order is one of this Court made in the exercise of its inherent jurisdiction. The assumption upon which this described group has identifiable common characteristics is that, as pleaded: "… it is unlikely that there is one [case] where the determination as to the care and protection (the so called 'establishment hearing') had been conducted as the Care Act and the rule of law requires." 1. The assumption is a mere assertion of a fact which admits by the use of the words "… it is unlikely" that it is unknown whether those within the described group actually have a common characteristic or not. The group is described here by hypothetical boundaries that are not capable, by reference to the pleading, of being ascertained. This description fails to accord with the provisions of Part 10. 2. As well, the pleading does not articulate any readily identifiable common questions of law or fact. 3. In all of these circumstances, this proceeding is not properly formulated under Part 10 of the Civil Procedure Act and must for that reason as well be dismissed. Costs 1. I see no reason why the costs of the defendant should not be paid by the plaintiff. The judgments of Harrison J and Williams J made it abundantly clear to this plaintiff that similar claims were hopeless and were summarily dismissed. 2. The plaintiff was warned by letter from the Crown Solicitor that these proceedings were liable to be summarily dismissed. She continued nevertheless. The Department has incurred costs because it has had to respond to proceedings, which I have determined to be an abuse of process. 3. The plaintiff must pay the defendant's costs. Orders 1. I make the following orders: 1. Pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005, the whole of the proceedings as constituted by the Amended Summons are dismissed. 2. Plaintiff to pay the defendant's costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 July 2021