GR v The Secretary, Department of Communities and Justice [2021] NSWCA 169

GR v The Secretary, Department of Communities and Justice [2021] NSWCA 169

The motion was dismissed because any application to vary the Court of Appeal's judgment had to be dealt with by that Court rather than the Equity Division; the new care-related relief sought was unrelated to the narrow subject matter of the appeal and therefore did not engage r 36.16(1); and any challenge to Sackar J's decision was incompetent without a summons seeking leave to appeal. Costs were ordered in favour of the first and second respondents because the usual rule that costs follow the event applied.

Jurisdiction
Australia
Judgment Date
09 August 2021
Procedural Posture
Child Welfare Care Proceedings / Notice of Motion Seeking Variation of Final Judgment and Transfer to the Equity Division After Appeal
Outcome
Notice of motion dismissed; applicant ordered to pay the first and second respondents' costs of the motion.
Legal Topics
['care Proceedings' 'variation of Judgments or Orders' 'transfer or Remitter to a Division' 'parens Patriae Jurisdiction' 'costs']
['child Welfare' 'civil Procedure'] ['care Proceedings' 'variation of Judgments or Orders' 'transfer or Remitter to a Division' 'parens Patriae Jurisdiction' 'costs']

Case Brief

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Procedural Posture

Child Welfare Care Proceedings / Notice of Motion Seeking Variation of Final Judgment and Transfer to the Equity Division After Appeal

Legal Issues

  1. 1 ['Whether the notice of motion should be transferred to the Equity Division.' "Whether the Court's final judgment could be varied under Uniform Civil Procedure Rules 2005 (NSW), r 36.16(1) to grant new relief concerning AB's care." "Whether the motion was competent insofar as it challenged Sackar J's decision without a summons seeking leave to appeal." 'Whether costs should follow the event.']

Ratio Decidendi

The motion was dismissed because any application to vary the Court of Appeal's judgment had to be dealt with by that Court rather than the Equity Division; the new care-related relief sought was unrelated to the narrow subject matter of the appeal and therefore did not engage r 36.16(1); and any challenge to Sackar J's decision was incompetent without a summons seeking leave to appeal. Costs were ordered in favour of the first and second respondents because the usual rule that costs follow the event applied.

Court Disposition

Notice of motion dismissed; applicant ordered to pay the first and second respondents' costs of the motion.

Orders

  • ['Dismiss the notice of motion filed 29 July 2021.' "Applicant to pay the first and second respondents' costs of the motion."]