GR v Secretary, Department of Communities & Justice; Minister for Families, Communities & Disability Services [2021] NSWCA 301

GR v Secretary, Department of Communities & Justice; Minister for Families, Communities & Disability Services [2021] NSWCA 301

The requirements of UCPR 7.17(1) for appointment of a tutor for AB are dispensed with pursuant to s 14 of the Civil Procedure Act 2005 (NSW). Appointment of Pastor Burton as tutor is refused due to opposition between the parents and the need for objectivity. An Independent Legal Representative is to be appointed for AB, with the Legal Aid Commission requested to arrange this. The proposed subpoena to Dr Samuels by BB is refused for lack of relevance and special grounds. All procedural applications by GR are dismissed for absence of requisite grounds or repetition of previously determined matters.

Parties
Applicant: GR; First Respondent: Secretary, Department of Communities & Justice; Second Respondent: Minister for Families, Communities & Disability Services; Third Respondent: BB
Jurisdiction
Australia
Judgment Date
10 December 2021
Procedural Posture
Interlocutory Applications in Appeal Proceedings / Interlocutory Orders Prior to Appeal Hearing
Outcome
Interlocutory applications resolved as follows: dispensation with tutor requirement for AB; appointment of Independent Legal Representative for AB; BB's and GR's notices of motion dismissed with costs.
Legal Topics
Appointment of Independent Legal Representative, Dispensation With Tutor Requirement, Subpoenas, Costs Orders, Leave to Adduce Further Evidence
Civil Procedure Children's Law Appointment of Independent Legal Representative Dispensation With Tutor Requirement Subpoenas Costs Orders Leave to Adduce Further Evidence

Case Brief

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Parties

GR

Applicant

Secretary, Department of Communities & Justice

First Respondent

Minister for Families, Communities & Disability Services

Second Respondent

BB

Third Respondent

Procedural Posture

Interlocutory Applications in Appeal Proceedings / Interlocutory Orders Prior to Appeal Hearing

Legal Issues

  1. 1 Whether to dispense with the requirement to appoint a tutor for a person under legal incapacity (AB) under r 7.17(1) UCPR 2005 and s 14 Civil Procedure Act 2005 (NSW)
  2. 2 Whether to appoint an Independent Legal Representative for AB
  3. 3 Whether to appoint Pastor Paul Burton as tutor for AB

Ratio Decidendi

The requirements of UCPR 7.17(1) for appointment of a tutor for AB are dispensed with pursuant to s 14 of the Civil Procedure Act 2005 (NSW). Appointment of Pastor Burton as tutor is refused due to opposition between the parents and the need for objectivity. An Independent Legal Representative is to be appointed for AB, with the Legal Aid Commission requested to arrange this. The proposed subpoena to Dr Samuels by BB is refused for lack of relevance and special grounds. All procedural applications by GR are dismissed for absence of requisite grounds or repetition of previously determined matters.

Court Disposition

Interlocutory applications resolved as follows: dispensation with tutor requirement for AB; appointment of Independent Legal Representative for AB; BB's and GR's notices of motion dismissed with costs.

Orders

  • Pursuant to s 14 of the Civil Procedure Act 2005 (NSW) dispense with the requirement of UCPR 7.17(1) for appointment of a tutor for AB.
  • Direct that an Independent Legal Representative be appointed for AB.