Harris (pseudonym) v Secretary, Department of Communities & Justice [2021] NSWCA 261

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Harris (pseudonym) v Secretary, Department of Communities & Justice [2021] NSWCA 261 Hearing dates: 23 September 2021 Date of orders: 29 October 2021 Decision date: 29 October 2021 Before: Meagher JA at [1]; Gleeson JA at [2]; Brereton JA at [3] Decision: (1) Dismiss the Notice of Motion filed 10 August 2021. (2) Dismiss the Further Amended Summons Seeking Leave to Appeal. (3) Order that the applicant pay the first respondent's costs of the proceedings in this Court. (4) No order as to the costs of the other respondents, to the intent that they bear their own costs. Catchwords: CIVIL PROCEDURE – Summary disposal – Dismissal of proceedings – Abuse of process – Where care proceedings on foot in the Children's Court – Where applicant applied to Supreme Court for stay of care proceedings – Whether Supreme Court proceedings duplicated issues and relief sought in care proceedings – Where final orders now made in care proceedings – Where only relief sought on appeal was declaration that removal of children was unlawful due to defective warrant – Children's Court unable to grant such relief but able to determine same question as part of ascertaining its own jurisdiction – Granting declaration would merely be an advisory opinion – Evidence suggests serious obstacles to impugning warrant – Leave to appeal refused CHILD WELFARE – Statutory removal – Emergency removal – Care order – Warrants – Challenge in Supreme Court to validity of warrant for removal – Whether abuse of process – Duty of Children's Court to ascertain its own jurisdiction COSTS – Orders against non-parties – Personal costs orders against lawyers – Where counsel appeared on watching brief for child despite no substantial interest in outcome – Whether to disallow costs of child's independent legal representative – Children joined of Court's own motion – Representative able to provide explanation for why submitting appearance not filed – Costs not disallowed Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 45, 90A(1), 233 Civil Procedure Act 2005 (NSW), s 99 Supreme Court Act 1970 (NSW), s 69 Uniform Civil Procedure Rules 2005 (NSW), r 13.4 Category: Principal judgment Parties: Harris (Applicant) Secretary, Department of Communities & Justice (First Respondent) RA (Second Respondent) DH (Third Respondent) RH (Fourth Respondent) AH (Fifth Respondent) Children's Court of New South Wales (Sixth Respondent) Representation: Counsel: P D Lange (Applicant) B J Dean (First Respondent) E M Stolier (Fifth Respondent)