Secretary, Department of Communities and Justice v Paul Robert Burton [2021] NSWSC 1285

Supreme Court New South Wales

Medium Neutral Citation: Secretary, Department of Communities and Justice v Paul Robert Burton [2021] NSWSC 1285 Hearing dates: 10 September 2021 Date of orders: 24 September 2021 Decision date: 24 September 2021 Jurisdiction: Equity Before: Rein J Decision: See [46] Catchwords: CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings – the proceedings concern the publication of material concerning a child who was removed from the care of his parents in 2017. The Defendants published material concerning the child (including on Facebook) which identified the child as well as caseworkers and medical practitioners involved in the child's treatment – interim orders were made in 2017 and 2018 restraining the Defendants from publishing information about the child – the proceedings for final relief were stayed pending the outcome of a related criminal matter concerning the Defendants. The Defendants by their Notice of Motion sought a number of orders and declarations some of which were not pressed at the hearing, but the principal orders sought were a declaration that the DCJ has no standing to maintain the proceedings against them for permanent orders restraining the Defendants from publishing details of the child and dismissal of these proceedings. The DCJ filed a Notice of Motion seeking the Defendants' Notice of Motion be dismissed and that the Defendants' pay the DCJ's costs of both Notices of Motion. Held: (1) there is no purpose, utility or need for a declaration that the child is no longer in the care of the Minister: at [26]; (2) the DCJ has standing to maintain the proceedings and there is no basis for the declaratory relief sought in that connection: at [32]; (3) the proceedings continue to be stayed pending the hearing of the related criminal proceedings: at [36]; and (4) the Defendants are to pay the DCJ's costs of the Defendant's Notice of Motion and of the DCJ's Notice of Motion: at [45]. The Court indicated it will consider whether to publish a redacted version of its 2017 Reasons: at [42]. Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW) Court Suppression and Non-Publication Orders Act 2010 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Burton v Babb [2020] NSWCA 331 Burton v Office of the Director of Public Prosecutions [2019] NSWCA 245 Burton v Secretary, Department of Communities and Justice [2020] NSWCA 68 Burton v Secretary, Department of Family and Community Services [2019] NSWCA 21 Burton v The Office of the Director of Public Prosecutions [2019] NSWDC 120 Re Christopher (Supreme Court (NSW), Rein J, 18 July 2017, unrep) Secretary, Department of Family and Community Services v Burton [2018] NSWSC 371 Secretary, Department of Family and Community Services v Burton (No 2) [2019] NSWSC 1865 Texts Cited: Nil Category: Principal judgment Parties: Secretary, Department of Communities and Justice (Plaintiff/ Respondent) Paul Burton (First Defendant/ First Applicant) Andrew Katelaris (Second Defendant/ Second Applicant) Representation: Mr M Anderson of Counsel (Plaintiff/ Respondent) Paul Burton (First Defendant/ First Applicant) Andrew Katelaris (Second Defendant/ Second Applicant)