GR v Secretary, Department of Communities and Justice [2021] NSWCA 267

GR v Secretary, Department of Communities and Justice [2021] NSWCA 267

The subpoenas issued by GR were set aside because they largely required production of material already produced and available in the s 91 appeal, would impose a further undue burden on the recipients, and were not shown to facilitate any object of the appeal. GR's remaining interlocutory orders were refused because the subpoena access order fell away, the evidence did not justify overriding existing parental responsibility orders, the requirements and basis for appointing a tutor or guardian ad litem were not established, and there was no evidence to support access to nominated experts. BB's motion was dismissed because the orders sought were not within the Court's power or jurisdiction...

Jurisdiction
Australia
Judgment Date
05 November 2021
Procedural Posture
Civil Procedure and Child Welfare Care Proceedings / Interlocutory Notices of Motion in a Pending Application for Leave to Appeal
Outcome
The first and second respondents' notice of motion was granted and all six subpoenas were set aside; GR's notice of motion was dismissed with costs; BB's notice of motion was dismissed with costs.
Legal Topics
['subpoenas' 'application to Set Aside Subpoenas' 'care Proceedings' 'parental Responsibility' 'contact Orders' 'tutor' 'guardian Ad Litem' 'further Evidence on Appeal']
['civil Procedure' 'child Welfare'] ['subpoenas' 'application to Set Aside Subpoenas' 'care Proceedings' 'parental Responsibility' 'contact Orders' 'tutor' 'guardian Ad Litem' 'further Evidence on Appeal']

Case Brief

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Procedural Posture

Civil Procedure and Child Welfare Care Proceedings / Interlocutory Notices of Motion in a Pending Application for Leave to Appeal

Legal Issues

  1. 1 ['Whether subpoenas issued by GR for extensive medical and care records of AB should be set aside.' 'Whether GR should be granted first access to subpoenaed records.' 'Whether orders should be made allowing AB to live with GR or allowing daily contact or other access.' 'Whether a tutor should be appointed for AB and whether AB should participate directly and via a tutor.' 'Whether AB should be facilitated access to all independent experts nominated by GR.' "Whether BB's requested orders for a police check, disclosure of GR's funding, counselling or treatment for GR, and a contempt explanation should be made."]

Ratio Decidendi

The subpoenas issued by GR were set aside because they largely required production of material already produced and available in the s 91 appeal, would impose a further undue burden on the recipients, and were not shown to facilitate any object of the appeal. GR's remaining interlocutory orders were refused because the subpoena access order fell away, the evidence did not justify overriding existing parental responsibility orders, the requirements and basis for appointing a tutor or guardian ad litem were not established, and there was no evidence to support access to nominated experts. BB's motion was dismissed because the orders sought were not within the Court's power or jurisdiction...

Court Disposition

The first and second respondents' notice of motion was granted and all six subpoenas were set aside; GR's notice of motion was dismissed with costs; BB's notice of motion was dismissed with costs.

Orders

  • ['On the notice of motion filed by the first and second respondents on 5 October 2021, the subpoena issued by GR on 27 September 2021 requiring Dr Akram Moussad to produce documents is set aside.' 'On the notice of motion filed by the first and second respondents on 5 October 2021, the subpoena issued by GR on 27...