GR v Secretary, Department of Communities and Justice [2023] NSWCA 239

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: GR v Secretary, Department of Communities and Justice [2023] NSWCA 239 Hearing dates: 6 September 2023 Decision date: 06 October 2023 Before: Adamson JA at [1]; Basten AJA at [131]; Griffiths AJA at [205] Decision: Proceedings 2023/182161: (1) Dismiss the summons in so far as it seeks leave to appeal from the orders dated 9 June 2022 and 20 July 2022 of the Guardianship Division of the New South Wales Civil and Administrative Tribunal (NCAT). (2) In so far as the summons seeks leave to appeal from the decision of the Appeal Panel of NCAT made on 3 February 2023: (a) extend time for the filing of the summons until 7 June 2023; (b) grant leave to GR to appeal from orders 2 and 3 made by the Appeal Panel of NCAT on 3 February 2023 (the Appeal Panel's orders); (c) allow the appeal and set aside the Appeal Panel's orders, and (d) declare that the Appeal Panel erred in not accepting GR's contention that the Guardianship Division's decisions dated 9 June 2022 refusing to adjourn the hearing of GR's joinder application and refusing GR's joinder application in her absence were legally unreasonable and resulted in a denial of procedural fairness. (3) In so far as the summons seeks leave to appeal from the orders made by Hammerschlag CJ in Eq on 19 May 2023: (a) grant leave to GR to appeal against the summary dismissal of proceedings 2022/332885 in the Equity Division (other than in relation to the application for a writ of habeas corpus), and proceedings 2023/55012 in the Common Law Division; (b) allow the appeal and set aside the orders made on 19 May 2023; (c) remit proceedings 2022/332885 and 2023/55012 and the balances of the notices of motion filed on 20 February 2023 and 4 April 2023 respectively to the Equity Division of the Supreme Court to be allocated to a single judge for case management. (4) Otherwise dismiss the summons. (5) Make no order as to costs. Proceedings 2023/201830: (1) Dismiss the appeal. (2) Make no order as to costs. Catchwords: APPEALS — ADMINISTRATIVE LAW — judicial review — denial of procedural fairness — appeal against interlocutory decision of Appeal Panel of Civil and Administrative Tribunal against decision of Tribunal refusing application to be joined to guardianship proceedings concerning applicant's child — failure to adjourn directions hearing at which joinder application was determined because applicant was unavailable — denial of procedural fairness because applicant was therefore not a party to the guardianship application and was not served with material before the Tribunal, had no opportunity to adduce evidence and no right of appeal against substantive guardianship or financial management orders APPEALS — PRACTICE AND PROCEDURE — application for leave to appeal against summary dismissal of Supreme Court proceedings — whether applicant already had statutory right of appeal — overlap in relief claimed — whether there was a triable issue Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 69, 79, 91 Civil and Administrative Tribunal Act 2013 (NSW), ss 5, 36, 38, 44, 55, 83, Sch 6 cll 6, 7, 12, 14 Guardianship Act 1987 (NSW), ss 7, 16, 18, 25 Supreme Court Act 1970 (NSW), ss 48, 49, 69, 75A, 101 Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28, 36.2 Cases Cited: Eaves v James (1988) 33 A Crim R 369 GR v Department of Communities and Justice [2021] NSWSC 1081 GR v Secretary, Department of Communities and Justice [2022] NSWCA 153 GR v Secretary, Department of Families, Disability and Community Services [2020] NSWCA 79 GR v Secretary, Department of Family and Community Services and Justice (No 4) [2020] NSWSC 457 GR v Secretary, Department of Family and Community Services and Justice [2019] NSWCA 177 Hampshire v Health Care Complaints Commission [2021] NSWCA 283 House v The King (1936) 55 CLR 499; [1936] HCA 40 In re The Will of FB Gilbert (dec'd) (1946) 46 SR (NSW) 318 J v Lieschke (1987) 162 CLR 447; [1987] HCA 4 Michael Wilson & Partners Ltd v Emmott [2021] NSWCA 315; (2021) 396 ALR 497 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Muriniti v Lawcover Insurance Pty Ltd [2022] NSWCA 159 Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36 NSW Breeding & Racing Stables Pty Ltd v Administrative Decisions Tribunal of New South Wales (2001) 53 NSWLR 559; [2001] NSWSC 494 PR v Department of Human Services [2007] VSC 338 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 Re Officer in Charge of Cells, ACT Supreme Court; Ex parte Eastman (1994) 68 ALJR 668 Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 The Age Company Limited v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 Wickstead v Browne (1992) 30 NSWLR 1; [1992] NSWCA 272 Wishart v Fraser (1941) 64 CLR 470; [1941] HCA 8 ZZT v Public Guardian [2023] NSWCATAP 31 Texts Cited: Practice Note SC CL 3 Supreme Court Common Law Division – Administrative and Industrial Law List Category: Principal judgment Parties: GR (Applicant) Secretary, Department of Communities and Justice (First Respondent) AB (Second Respondent) NSW Trustee and Guardian (Third Respondent) The Public Guardian (Fourth Respondent) Sydney Children's Hospital (Fifth Respondent) Impact Youth Services (Sixth Respondent) Representation: Counsel: C O Gleeson / S J Hoare (amici curiae for the applicant) GR (in person) M Dalla-Pozza (First, Third, Fourth and Fifth Respondents) P Mathers (Second Respondent) No appearance (Sixth Respondent)