Bi v Attorney-General for the State of NSW [2021] NSWSC 106

Bi v Attorney-General for the State of NSW [2021] NSWSC 106

The summons was dismissed because the declarations sought were directed to abstract and hypothetical questions about the construction and application of the Children and Young Persons (Care and Protection) Act 1998, rather than to resolving an existing legal controversy between the parties, and would produce no tangible or foreseeable consequences; the proceedings were therefore misconceived and could not be reformulated to avoid those fatal defects.

Jurisdiction
Australia
Judgment Date
19 February 2021
Procedural Posture
Civil Proceedings Seeking Declaratory Relief Concerning the Children and Young Persons (care and Protection) Act 1998 / Second Defendant's Notice of Motion for Summary Dismissal Under UCPR 13.4(1)
Outcome
Summons dismissed pursuant to UCPR 13.4(1); no order as to costs.
Legal Topics
['summary Dismissal' 'abstract or Hypothetical Questions' 'utility of Declarations' 'representative Proceedings' 'care and Protection Jurisdiction']
['civil Procedure' 'declaratory Relief'] ['summary Dismissal' 'abstract or Hypothetical Questions' 'utility of Declarations' 'representative Proceedings' 'care and Protection Jurisdiction']

Case Brief

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Procedural Posture

Civil Proceedings Seeking Declaratory Relief Concerning the Children and Young Persons (care and Protection) Act 1998 / Second Defendant's Notice of Motion for Summary Dismissal Under UCPR 13.4(1)

Legal Issues

  1. 1 ['Whether the summons seeking declaratory relief should be dismissed under UCPR 13.4(1).' 'Whether the declarations sought concerned a real legal controversy between the parties or only abstract or hypothetical questions.' 'Whether the declarations sought would produce foreseeable or tangible consequences for the parties.' 'Whether the plaintiffs should be given an opportunity to replead their case.']

Ratio Decidendi

The summons was dismissed because the declarations sought were directed to abstract and hypothetical questions about the construction and application of the Children and Young Persons (Care and Protection) Act 1998, rather than to resolving an existing legal controversy between the parties, and would produce no tangible or foreseeable consequences; the proceedings were therefore misconceived and could not be reformulated to avoid those fatal defects.

Court Disposition

Summons dismissed pursuant to UCPR 13.4(1); no order as to costs.

Orders

  • ["The plaintiff's summons filed on 11 September 2020 is dismissed pursuant to UCPR 13.4(1)." 'No order as to costs.']