GR v Secretary, Department of Communities and Justice (No 2) [2022] NSWSC 1183

GR v Secretary, Department of Communities and Justice (No 2) [2022] NSWSC 1183

The notice of motion was dismissed because the relief sought was procedural and was properly before the Equity Duty Judge; no basis was shown to depart from Registrar Walton's timetable for the proposed amended summons, which gave defendants an opportunity to indicate consent or opposition; proceedings under the Guardianship Act 1987 (NSW), including any appeal to the Court from NCAT guardianship orders, are assigned to the Equity Division rather than the Common Law Division; and no sufficient case for transfer to the Common Law Division was made out.

Jurisdiction
Australia
Judgment Date
01 September 2022
Procedural Posture
Proceedings in the Equity Division Invoking the Parens Patriae Jurisdiction Seeking Orders in Relation to the Plaintiff's Child; Notice of Motion Seeking Procedural Orders Including Transfer to the Common Law Division and Leave to File an Amended Summons. / Interlocutory Notice of Motion Before the Equity Duty Judge.
Outcome
Notice of motion dismissed with costs, such costs to be defendants' costs in the proceedings to the extent they are entitled to claim costs.
Legal Topics
['transfer Between Supreme Court Divisions' 'assignment of Business Between Common Law Division and Equity Division' 'appeals From NCAT Guardianship Division' 'leave Requirements for Urgent Interlocutory Applications' 'conduct of Parties at Hearing' 'costs of Interlocutory Application']
['civil Procedure' 'court Administration' 'guardianship' 'abuse of Process' 'practice and Procedure'] ['transfer Between Supreme Court Divisions' 'assignment of Business Between Common Law Division and Equity Division' 'appeals From NCAT Guardianship Division' 'leave Requirements for Urgent Interlocutory Applications' 'conduct of Parties at Hearing' 'costs of Interlocutory Application']

Case Brief

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Procedural Posture

Proceedings in the Equity Division Invoking the Parens Patriae Jurisdiction Seeking Orders in Relation to the Plaintiff's Child; Notice of Motion Seeking Procedural Orders Including Transfer to the Common Law Division and Leave to File an Amended Summons. / Interlocutory Notice of Motion Before the Equity Duty Judge.

Legal Issues

  1. 1 ['Whether the notice of motion should be returnable before the Duty Judge in Common Law rather than the Equity Duty Judge.' "Whether leave should be granted to file the proposed amended summons before the defendants had indicated consent or opposition under Registrar Walton's orders." 'Whether the summons should be transferred from the Equity Division to the Common Law Division because of alleged appeal proceedings concerning NCAT guardianship orders.' 'Whether the plaintiff could use a procedural application to seek urgent orders in relation to AB despite existing orders requiring prior leave.' 'Whether costs should be ordered in relation to the notice of motion.']

Ratio Decidendi

The notice of motion was dismissed because the relief sought was procedural and was properly before the Equity Duty Judge; no basis was shown to depart from Registrar Walton's timetable for the proposed amended summons, which gave defendants an opportunity to indicate consent or opposition; proceedings under the Guardianship Act 1987 (NSW), including any appeal to the Court from NCAT guardianship orders, are assigned to the Equity Division rather than the Common Law Division; and no sufficient case for transfer to the Common Law Division was made out.

Court Disposition

Notice of motion dismissed with costs, such costs to be defendants' costs in the proceedings to the extent they are entitled to claim costs.

Orders

  • ['Note the Notice of Motion has been listed before Meek J as Equity Duty Judge.' 'Dismiss the claims for relief in paragraphs 1-3 of the Notice of Motion.' "Order the costs of and incidental to the Notice of Motion be the defendants' costs in the proceedings to the extent they are entitled to claim costs."]