Court of Appeal Supreme Court New South Wales Medium Neutral Citation: NU v NSW Secretary of Family and Community Services [2017] NSWCA 77 Hearing dates: 10 April 2017 Decision date: 10 April 2017 Before: Payne JA Decision: (1) Grant leave to the applicant to file and serve a subpoena on the Court Reporting Service for the production of the transcript of the ex tempore remarks of Maiden DCJ in the District Court delivered on 12 December 2016. (2) This subpoena will be made returnable on 24 April 2017 before the Registrar of this Court. (3) Direct the Registrar of this Court to make these orders and these reasons available to the associate of Maiden DCJ. (4) A draft of the subpoena is to be emailed to the Associate to Payne JA and served on parties by 4pm today, 10 April 2017. (5) Any objections by any party to the form of the subpoena to be notified by email to the Associate to Payne JA by 9am tomorrow, 11 April 2017. (6) Absent any such objection, grant leave for the subpoena to be issued on 11 April 2017. (7) Matter adjourned to the 24th April 2017 and listed before the Registrar. (8) Liberty to apply to Payne JA chambers on 24 hours' notice. Catchwords: PROCEDURE – application for judicial review – applicant seeks issue of subpoena for access to transcript of ex tempore remarks – leave granted to issue subpoena Cases Cited: Bar-Mordecai v Rotman [2000] NSWCA 123 Wentworth v Rares [1990] NSWCA 185 Category: Procedural and other rulings Parties: NU (applicant) NSW Secretary of Family and Community Services (first respondent) Independent Legal Representative for the child (second respondent) KU (third respondent) District Court of New South Wales (fourth respondent) Representation: Counsel: Ms L Clarke (applicant) Ms E McGee (first and fourth respondents) Ms Z Ung (second respondent) Solicitors: Crown Solicitors Office (first and fourth respondents) Legal Aid (second respondent) File Number(s): 2017/00077429 Decision under review Court or tribunal: District Court of NSW Date of Decision: 12 December 2016 Before: Maiden DCJ File Number(s): 2015/333088 [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.] Decision under review Judgment – ex tempore [Amended in accordance with the principles in Bar-Mordecai v Rotman [2000] NSWCA 123 at [194]] 1. PAYNE JA: This matter comes before me today in the referrals list. I am informed that the matter involves the Children's Court jurisdiction and a young child. This creates a degree of urgency. All of the parties agree that it is desirable that this Court hear and determine any review of the District Court proceedings as soon as possible. 2. On 12 December 2016, Judge Maiden delivered an ex tempore judgment. On 16 February 2017, a copy of the transcript was sought by the parties. I am informed that the parties have a complete transcript of the hearing, however, in accordance with usual transcription practice, the transcript of the ex tempore decision has not been released in order to give Judge Maiden a chance to correct his remarks. This practice is in accordance with the principles outlined by Samuels JA in Wentworth v Rares [1990] NSWCA 185 at page 2, lines 17 – 24. 3. Ms Clarke's client filed an application for judicial review of Judge Maiden's decision in this Court on 10 March 2017. She submitted that her client is unable to progress the matter further without reasons for the decision. It is acknowledged by all parties today that none of them have access to settled reasons, or a transcript of his Honour's ex tempore remarks. 4. In Wentworth v Rares, Samuels JA concluded that a judgment delivered in open court is a public proceeding and a formal statement which is always transcribed or recorded by the court reporter and the essence of which is transcribed by others. Any later judgment, certified by the associate, is also a public document and "the two are always available for comparison", both of them being available to scrutiny. 5. His Honour continued on page 3: …I see no reason why a subpoena should not be served on the Court Reporting Branch to produce the draft which the court reporter has taken from what the judge orally said so that there will always be means available to compare what it is contended that the judge said on the occasion judgment was delivered, and the certified judgment which may contain variations or revisions. 1. I agree with his Honour. In this case, no comparison is sought to be made between the revised judgment and the transcript, as neither are currently available. Rather, all parties agree that at least a transcript of the ex tempore remarks is necessary for the matter to proceed in this Court. As I have said, this is a case involving a degree of urgency. 2. It is also appropriate for Judge Maiden to have an adequate opportunity to correct the transcript and release his judgment to the parties. 3. I am satisfied that this is a case where it is appropriate to grant leave to Ms Clarke's client to file and serve a subpoena to the Court Reporting Service to produce the transcript of the ex tempore remarks made by Judge Maiden on 12 December 2016. No submission in opposition to that course was made by any party. 4. If, however, a corrected judgment is made available to the parties before that subpoena is made returnable, then it is a matter for the parties whether they continue to seek access to the transcript. Nothing I have said today indicates any view one way or the other whether access should be granted. I am informed by Ms Clarke that nonetheless there may be a request by her client for access to the transcript. I say no more on this matter. 5. Therefore, the orders of the Court are as follows: 1. Grant leave to the applicant to file and serve a subpoena on the Court Reporting Service for the production of the transcript of the ex tempore remarks of Maiden DCJ in the District Court delivered on 12 December 2016. 2. This subpoena will be made returnable on 24 April 2017 before the Registrar of this Court. 3. Direct the Registrar of this Court to make these orders and these reasons available to the associate of Maiden DCJ. 4. A draft of the subpoena is to be emailed to the Associate to Payne JA and served on parties by 4pm today, 10 April 2017. 5. Any objections by any party to the form of the subpoena to be notified by email to the Associate to Payne JA by 9am tomorrow, 11 April 2017. 6. Absent any such objection, grant leave for the subpoena to be issued on 11 April 2017. 7. Matter adjourned to the 24th April 2017 and listed before the Registrar. 8. Liberty to apply to Payne JA chambers on 24 hours' notice. ********** Amendments 13 April 2017 - Subsequent to the initial publication of this judgment it was brought to the attention of the Court that suppression of the applicant and third respondent's names may be required. On 11 April 2017 I restricted the judgment to allow the parties to make submissions on this issue. On 12 April 2017 it was submitted on behalf of the applicant that the child the subject of these proceedings will have been referred to by a pseudonym in the lower courts pursuant to s 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW). No other party filed submissions addressing this. I am persuaded to make orders pursuant to ss 7 and 8 of the Courts Suppression and Non-publication Orders Act 2010 (NSW) that, until further order, the applicant be named as "NU" and the third respondent be named as "KU" and that there be no publication of the names or other material identifying the applicant or third respondent. 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: 13 April 2017