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) Solicitors: New South Wales Crown Solicitor's Office (First and Sixth Respondents) Legal Aid NSW (Third Respondent) Rafton Family Lawyers Parramatta (Fifth Respondent) File Number(s): 2021/136677 Publication restriction: Children and Young Persons (Care and Protection) Act 1998 (NSW), s 105, prohibits the publication of the name of, or any information or other material that identifies or is likely to lead to the identification of, a child or young person, who is mentioned or otherwise involved in any proceedings before the Children's Court or in any non-court proceedings, or who is or has been under the parental responsibility of the Minister or in out-of-home care. Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division; Court of Appeal Citation: [2021] NSWSC 519; [2021] NSWCA 101 Date of Decision: 15 April 2021; 27 May 2021 Before: Sackar J; McCallum JA File Number(s): 2021/136677 [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.] HEADNOTE [This headnote is not to be read as part of the judgment] The applicant is the father of three children who, on 25 March 2020, were removed from the home of the applicant and their mother pursuant to a warrant issued under Children and Young Persons (Care and Protection) Act 1998 (NSW), s 233. The respondent then commenced proceedings in the Children's Court (the "care proceedings") on 27 March 2020, and an interim care order was made on 1 April 2020. A final hearing in the Children's Court was scheduled to commence on 17 May 2021. On 24 December 2020 the applicant commenced proceedings in the Supreme Court, seeking a stay of the care proceedings, a declaration that the removal of the children was unlawful due to a defective warrant, and alternatively, an order restoring the children to the care and parental responsibility of the applicant and their mother. Leave was later requested to seek a further order prohibiting the continuation of the care proceedings on the basis that they were an abuse of process. On 15 April 2021, the primary judge refused that leave, and acceded to a motion by the respondent for summary dismissal of the Supreme Court proceedings on the basis that, by duplicating the issues before the Children's Court, they were vexatious and an abuse of process. The applicant applied for leave to appeal to this Court on 14 May 2021, and filed a motion seeking a stay of the care proceedings pending that application. On 17 May 2021, just over an hour before the Children's Court hearing was due to commence, that motion was dismissed by a single judge of the Court of Appeal, and the hearing was therefore able to proceed. On 25 June 2021, the Children's Court made final orders allocating all aspects of parental responsibility to the mother, save for the issue of contact, which was allocated to the Minister. At the hearing of the substantive leave application, the applicant only pursued the declaration that the removal of the children was unlawful, and submitted that seeking this relief did not duplicate the issues in the care proceedings as granting such a declaration is not within the jurisdiction of the Children's Court. Held (per Brereton JA; Meagher JA and Gleeson JA agreeing), refusing leave to appeal: [1] (Meagher JA), [2] (Gleeson JA), [20] (Brereton JA). As to the application for leave to appeal: The applicant's case in the Supreme Court was that the alleged invalidity of the warrant deprived the Children's Court of jurisdiction. The declaration of invalidity was not propounded as an independent basis for relief. In any event, while the Children's Court could not have granted the declaration, it had the power to determine the question raised by the application for the declaration as part of its duty to ascertain its own jurisdiction. The primary judge therefore rightly saw the Supreme Court proceedings as duplicating the care proceedings: [9]-[11]. Further, this Court would merely be rendering an advisory opinion by granting the declaration, as it is now the only relief sought: [12]. Finally, a prima facie examination of the evidence suggests that there are serious obstacles facing any argument that the warrant was defective. For each of these reasons, leave to appeal should be refused: [13]-[14]. As to costs: Before this Court, the fifth respondent – one of the children – was represented by counsel on a watching brief despite having no substantial interest in the outcome. However, the children were joined on the Court's own motion, and the fifth respondent's independent legal representative provided evidence demonstrating that he was content to file a submitting appearance if the applicant indicated that he was not seeking relief that would affect the child's position, but that this did not satisfactorily occur. It is regrettable that costs were unnecessarily incurred, but given these circumstances and the modest amount of costs to be rendered, they should not be disallowed: [16]-[19]. Judgment 1. MEAGHER JA: I agree with the reasons and orders proposed by Brereton JA. 2. GLEESON JA: I agree with Brereton JA. 3. BRERETON JA: The applicant is the father of three children who were on 25 March 2020 removed from the home in which they resided with the applicant and their mother, in pursuance of a warrant under Children and Young Persons (Care and Protection) Act 1998 (NSW), s 233, purportedly issued that day by an authorised officer. As required by s 45 of that Act, the respondent Secretary, Department of Communities & Justice commenced proceedings in the Children's Court on 27 March 2020, and on 1 April 2020 that Court made an interim care order placing the children in the parental responsibility of their mother for all purposes other than education and contact and, for those purposes, in the parental responsibility of the Minister, and (pursuant to s 90A(1)) prohibiting the applicant from having any contact with them. As a result of the interim care order made on 1 April 2020, the children returned to their former home, where they have continued to reside, with their mother, ever since. 4. In due course, the proceedings were set down for final hearing in the Children's Court for two weeks commencing on 17 May 2021. Meanwhile, on 24 December 2020, the applicant commenced proceedings in the Equity Division, claiming an order that the Children's Court proceedings be stayed, a declaration that the removal of the children on 25 March 2020 was unlawful, and alternatively, in the Court's parental jurisdiction, an order that the children be restored to the parental responsibility and care of the applicant and their mother. Subsequently, the applicant sought leave to amend his summons by adding a claim that the commencement and continuation of the Children's Court proceedings by the Secretary was an abuse of process, and for an order pursuant to Supreme Court Act 1970 (NSW), s 69, prohibiting the continuation of the proceedings in that Court. Concurrently, by motion filed on 23 March 2021, the Secretary applied pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 13.4, for summary dismissal of the proceedings in the Equity Division, on the basis that they were vexatious and an abuse of process. On 15 April 2021, Sackar J refused leave to file the proposed Amended Summons, and dismissed the proceedings. 5. The applicant applied for leave to appeal to this Court. On 17 May 2021, McCallum JA dismissed his motion for a stay, pending the hearing of the application for leave to appeal, of the proceedings in the Children's Court, which were due to commence that day. The proceedings in the Children's Court continued and were concluded. On 25 June 2021, that Court made final orders allocating all aspects of parental responsibility other than contact to their mother until 18 years of age, with parental responsibility for contact being allocated to the Minister. 6. In the proceedings in the Equity Division, the Children's Court was named as second defendant, the mother as third defendant, and the three children as fourth, fifth and sixth defendants. It does not appear that any of them played any active role in the proceedings. They were not joined by the summons seeking leave to appeal. However, the judgment of McCallum JA records that a solicitor appeared for one of the children, DH, on 17 May 2021. On 19 May 2021, the Registrar made orders joining the mother and the children as parties, and also joining the Children's Court. The Children's Court filed a submitting appearance on 17 June 2021. Mr Tim Mara, solicitor, as independent legal representative for the child AH, filed an appearance on 26 July 2021. The child DH filed a submitting appearance on 10 September 2021. 7. Before this Court, there were: 1. The applicant's motion, filed on 10 August 2021, to review the decision of McCallum JA (refusing the stay); 2. The applicant's application, incorporated in his Further Amended Summons Seeking Leave to Appeal filed on 31 August 2021, for the removal of AH as a respondent; and 3. The application for leave to appeal, with which it is convenient to deal first, as it is dispositive. Application for Leave to Appeal 1. In this Court, the applicant submitted that while the outcome of the proceedings in the Children's Court renders moot the relief claimed in respect of the children and the Children's Court proceedings, it does not affect the claim for a declaration that the removal of the children was unlawful, which is an independent claim for relief which could not have been determined by the Children's Court. His counsel presented the case on the basis that the claim for a declaration was an independent claim, and that Sackar J erred in dismissing that part of the proceedings, which not only did not duplicate the Children's Court proceedings, but which sought relief which did not lie within the jurisdiction of the Children's Court and which could only have been granted by the Supreme Court. 2. First, that submission has the difficulty that it was not the basis upon which the case was conducted below. The declaration that the removal of the children was unlawful was sought as the foundation for the application that the proceedings in the Children's Court be stayed, on the theory that the alleged invalidity of the warrant meant that the ensuing proceedings in the Children's Court lacked a proper jurisdictional foundation. This was made manifest in the following exchange before Sackar J, between his Honour and counsel then appearing for the applicant: [1] "HIS HONOUR: But the proceedings before me whether they manifest themselves in an attack on a warrant or otherwise all come back to the question, don't they or do they, that the interim orders should never have been made. That's the point, isn't it? FINCH: Yes your Honour. HIS HONOUR: And the focal point therefore of the proceedings whether one addresses it from the unlawfulness of the warrant exercise and therefore the unreasonableness of any views held. The sum total of all those arguments inevitably would be to strike down or to put to one side, as it were, eviscerate really the interim order. FINCH: Correct, your Honour. HIS HONOUR: Okay, thank you." 1. Before us, counsel maintained that there was another purpose, namely to hold the authorities who issued the warrant to account. However, if the proceedings before the primary judge truly had such a purpose, then that would have been the obvious answer to his Honour's proposition that the proceedings before him effectively duplicated those in the Children's Court, yet it was not proffered. Moreover, the same approach was evident, and inherent, in the stay application before McCallum JA: the fundamental argument on the stay application was that the application for leave to appeal would be rendered futile if the proceedings in the Children's Court were not stayed. [2] 2. Secondly, although it is true that the Children's Court could not have granted a declaration that the removal was unlawful, it is not correct that the Children's Court could not have determined the question raised by the application for that declaration, in the context in which it was raised as going to the Children's Court's jurisdiction. Though the Children's Court could not have made the declaration sought, if its jurisdiction was questioned on the basis that some foundation for it was absent, its first duty was to ascertain that it had jurisdiction, for which purpose it could resolve any necessary anterior question. Insofar as its jurisdiction was impugned on the basis that the warrant was defective or unauthorised, it could have resolved whether it lacked jurisdiction for that reason. Again, that explains why the proceedings were rightly seen by the primary judge as duplicating the Children's Court proceedings, because their essential purpose was to impugn the proceedings pending in the Children's Court. 3. Thirdly, the only claim for relief which the applicant now pursues is a bare claim for a declaration, unassociated with any consequential relief. In effect, the Court would merely be rendering an advisory opinion, with no consequences. If the applicant sought damages, for example for trespass, as a result of the purported execution of a defective warrant, the validity of the warrant would be an issue in those proceedings. In those circumstances, there are powerful reasons why the Court as a matter of discretion would decline to grant merely declaratory relief. 4. Finally, it is unnecessary to decide whether there is a sufficiently arguable case that the warrant was defective, save to observe that insofar as it is contended that the authorised officer who issued it did not consider mandatory considerations, serious obstacles are posed by the occupiers' notice, signed by the authorised officer concurrently with the issue of the warrant, which refers specifically to the very same mandatory considerations that the authorised officer is said not to have taken into account. 5. For those reasons, but chiefly because if leave were granted it would be for an appeal to permit proceedings seeking an advisory opinion which the Court is as a matter of discretion not likely to give, and which was not the basis upon which the proceedings were conducted below, leave for appeal should be refused. Review of McCallum JA's decision 1. The motion dealt with by McCallum JA sought a stay of the imminent final hearing in the Children's Court, and expedition of the hearing of the application for leave to appeal in this Court. Since her Honour's dismissal of that application, the proceedings in the Children's Court have been heard and determined. The application for leave to appeal is the subject of this judgment. Even if this Court on review came to a view which differed from that of McCallum JA, the relief sought is now pointless and without utility. The motion for review was not pressed before us, and it should be dismissed. Joinder 1. The applicant's counsel did not press the application for removal of AH's independent legal representative as a party. However, the Court was concerned at what appeared to be the unnecessary incurring of costs by the independent legal representative's involvement in the proceedings, including appearance at the hearing, represented by counsel who, at the outset, said that her brief was a "watching brief". 2. It was not apparent that AH's independent legal representative had any substantial interest in the outcome of the proceedings in this Court. Indeed, it is not entirely apparent why the children were joined as parties by the Registrar. However, in circumstances where they were joined of the Court's own motion, in the course of a directions hearing on 19 May 2021, in which the applicant was represented by senior counsel who took no objection to that course – as distinct from on their own application as the applicant once suggested – it cannot be said that they have intermeddled without cause in the proceedings. 3. Nonetheless, in those circumstances, a submitting appearance could have been filed, which was the course adopted on behalf of DH. The independent legal representative was afforded an opportunity to make submissions as to why an order should not be made under Civil Procedure Act (NSW), s 99, disallowing costs. Although at first no satisfactory explanation was offered as to why a submitting appearance was not filed, the independent legal representative subsequently, with leave, provided to the Court a number of email exchanges between him and the applicant, on 2 September 2021, 8 September 2021, and 15 September 2021, in which he indicated that he was contemplating filing a submitting appearance and sought to ascertain whether the applicant continued to seek any relief that would affect the position of the children. The applicant also provided a number of email exchanges between himself and the Registrar, and another with the independent legal representative on 2 September 2021, in which the independent legal representative stated: "As I have said to you previously should you (or the crown) serve upon me the documents in the substantive proceedings file number 2021/00136677 and I determine that there is no reason for [AH] to be represented in those matters then I will not oppose not being involved in the proceedings. Until such time as the court releases me from my role as a party I have a duty to attend the court." 1. It is fair to say that the applicant's responses did not clarify that position. In those circumstances, and given the modest amount of costs which the independent legal representative has indicated that he proposes to render, although it is regrettable that the costs of an appearance, in particular one that included briefing counsel, were incurred, I am not inclined to deprive him of his costs. Orders 1. I propose the following orders: 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. ********** Endnotes 1. Tcpt, 15 April 2021, pp 190(50)-191(15). 2. Stay judgment at [5(3)], [17] (McCallum JA). 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: 11 February 2022