DIRECTOR-GENERAL OF FAMILY AND COMMUNITY SERVICES v DUMESNY [1989] NSWCA 61

DIRECTOR-GENERAL OF FAMILY AND COMMUNITY SERVICES v DUMESNY [1989] NSWCA 61

Although the District Court judge erred in law by failing to conduct a rehearing in accordance with section 81(3) of the Children (Care and Protection) Act 1987, discretionary considerations militate against granting orders in the nature of certiorari and mandamus where relief may no longer be necessary, and the applicant may seek relief anew if required.

Parties
Claimant: Director-General of Family and Community Services; Opponent: Dumesny; Opponent: Mrs Dumesny
Jurisdiction
Australia
Judgment Date
03 May 1989
Procedural Posture
Application for Certiorari and Mandamus / Appeal in the Supreme Court of New South Wales, Court of Appeal
Outcome
summons dismissed with costs
Legal Topics
Certiorari, Mandamus, Appeal Under Children (care and Protection) Act 1987, Discretion in Granting Remedies
Administrative Law Family Law Child Protection Certiorari Mandamus Appeal Under Children (care and Protection) Act 1987 Discretion in Granting Remedies

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Parties

Director-General of Family and Community Services

Claimant

Dumesny

Opponent

Mrs Dumesny

Opponent

Procedural Posture

Application for Certiorari and Mandamus / Appeal in the Supreme Court of New South Wales, Court of Appeal

Legal Issues

  1. 1 Whether Judge McDevitt in the District Court erred in upholding the appeal without conducting a new hearing as required by section 81(3) of the Children (Care and Protection) Act 1987
  2. 2 Whether discretionary relief (certiorari and mandamus) should be granted to the Director-General

Ratio Decidendi

Although the District Court judge erred in law by failing to conduct a rehearing in accordance with section 81(3) of the Children (Care and Protection) Act 1987, discretionary considerations militate against granting orders in the nature of certiorari and mandamus where relief may no longer be necessary, and the applicant may seek relief anew if required.

Court Disposition

summons dismissed with costs

Orders

  • Summons dismissed
  • Claimant to pay the costs