Court of Appeal Supreme Court New South Wales Medium Neutral Citation: GR v The Secretary, Department of Communities and Justice [2021] NSWCA 169 Hearing dates: 9 August 2021 Date of orders: 9 August 2021 Decision date: 09 August 2021 Before: Gleeson JA Decision: (1) Dismiss the notice of motion filed 29 July 2021. (2) Applicant to pay the first and second respondents' costs of the motion. Catchwords: CHILD WELFARE – care proceedings – practice and procedure – application to vary final judgment – whether notice of motion should be transferred to Equity Division – motion dismissed Legislation Cited: Supreme Court Act 1970 (NSW), s 51(2)(b) Uniform Civil Procedure Rules 2005 (NSW), rr 36.16(1), 42.1 Cases Cited: GR v Secretary, Department of Communities and Justice [2021] NSWCA 157 GR v The Department of Communities & Justice [2021] NSWSC 983 Category: Principal judgment Parties: GR (a pseudonym) (Self-represented) (Applicant) The Secretary, Department of Communities and Justice (First respondent) The Minister, Department of Communities and Justice (Second respondent) BB (a pseudonym) (Self-represented) (Third respondent) (No appearance) Ms K Wooi (Independent legal representative) (Fourth respondent) Representation: Counsel: GR (Self-represented) (Applicant) Mr M Anderson (First and second respondents) Ms K Wooi (Independent legal representative) (Fourth respondent) Solicitors: GR (a pseudonym) (Self-represented) (Applicant) Crown Solicitor's Office (First and second respondents) Ms K Wooi (Independent legal representative) (Fourth respondent) File Number(s): 2020/359409 [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.] Judgment 1. GLEESON JA: On 30 July 2021, the Court allowed an appeal by GR (the mother of the young person, AB) and set aside interlocutory orders made in the proceedings below appointing a guardian ad litem for AB: GR v Secretary, Department of Communities and Justice [2021] NSWCA 157. 2. By notice of motion filed 29 July 2021, GR seeks a variety of relief, including varying the final judgment in this appeal pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 36.16(1), that the parens patriae jurisdiction be invoked, an order that AB be placed in his own home forthwith in his mother's care, an order that AB not be removed from his home or any other place in his mother's care without leave of the court, and that the order of the Children's Court of 3 April 2020 be set aside or stayed. 3. At the hearing of the application, GR sought a transfer of the motion to the Equity Division. This was opposed by the first and second respondents, the Secretary and the Minister, who sought dismissal of the motion on the ground that Sackar J had already dealt with a similar application by GR filed 3 August 2021 in the Equity Division, which was dismissed on 4 August 2021: GR v The Department of Communities & Justice [2021] NSWSC 983. 4. GR sought to justify the transfer on the basis of advice said to have been given by counsel, Mr M Robinson SC, that although she could file a summons seeking leave to appeal from the decision of Sackar J of 4 August 2021, she should instead seek to have the motion in this Court transferred to the Equity Division with a view to making another application in that Division. 5. Whilst this Court has power to remit proceedings to a Division (Supreme Court Act 1970 (NSW), s 51(2)(b)), the appropriate course here is that the motion be dismissed. This is for several reasons. 6. First, insofar as the motion seeks to vary the judgment of this Court given on 30 July 2001, that application can only be dealt with by this Court, not the Equity Division. 7. Second, insofar as the motion seeks new and different relief concerning the care of AB which is unrelated to the narrow subject matter of the appeal which was determined on 30 July 2021, the power under UCPR, r 36.16(1) to vary the Court's judgment is not engaged. 8. Third, to the extent that the motion seeks to challenge the interlocutory decision of Sackar J given on 4 August 2021, the motion is incompetent in the absence of the filing of a summons seeking leave to appeal from that order. 9. As to costs, the Secretary and the Minister sought an order for the costs of the motion. Ms Wooi, the independent legal representative for AB, did not seek any order as to costs. GR says that there should be no order as to costs of the motion because she had personally incurred costs in relation to the appeal to this Court which was determined on 30 July 2021. That is no reason why the usual rule contained in UCPR, r 42.1 (that costs follow the event) should not apply in this case where GR made a new application after judgment on the appeal had been reserved, on discrete and unrelated issues and that application is later dismissed. 10. Accordingly, at the conclusion of the hearing on 9 August 2021 the Court made the following orders: 1. Dismiss the notice of motion filed 29 July 2021. 2. Applicant to pay the first and second respondents' costs of the motion. ********** 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: 09 August 2021