Bi v Attorney-General for the State of NSW

Judgment

1. HIS HONOUR: These proceedings were commenced by summons filed on 11 September 2020. The sole prayer for relief is in the following terms: "1 The entire summons seeks declaratory relief, pursuant to s 75 of the Supreme Court Act 1970, in relation to the correct interpretation of the NSW Children and Young Persons (Care and Protection) Act 1998. It also seeks declaratory relief in relation to the incorrect application of the Care Act in the courts exercising care and protection jurisdiction. Mostly major provisions of the Care Act are being addressed. References to section numbers are references to the sections of the Care Act unless otherwise stated."
2. The balance of the summons cannot conveniently be summarised. As an understanding of its contents is arguably necessary for present purposes, it is reproduced in the Schedule to these reasons.
3. By notice of motion filed on 10 November 2020, the second defendant moved the Court for orders that included the following: 1. The plaintiff's summons filed on 11 September 2020 be dismissed pursuant to UCPR 13.4(1). 2. In the alternative, the claims for relief [sic] in paragraphs 2, 3, 8, 12, 13, 14, 15, 16 and 19 of the summons be dismissed pursuant to UCPR 13.4(1).
4. Ms Bi is unrepresented. Written submissions nominally filed by her in reply to the motion appear clearly to have been prepared by Mr George Potkonyak, who sought leave to appear in the interests of a group that he represents called Capellia Children Inc. Mr Potkonyak, who has legal training, made oral submissions on Ms Bi's behalf in response to the present application. Ms Bi's submissions in reply were relevantly as follows: "2. The Secretary's notice of motion as expressed at order [2] sought by him, implies that there are 20 pleadings in the summons that, at least likely, do not fall under the r 13.4(1) of UCPR. 3. The Secretary's references to numerous decided cases, firstly, completely ignore the provisions of s 75 of the Supreme Court Act 1970 by which the Court is given power, in the exercise of its discretion, to make binding declarations whether any consequential relief is or could be claimed or not. However, the Court has not been given power to summarily dismiss the summons seeking such relief, neither to entertain an objection by the opponents on the ground of the plaintiffs seeking purely declaratory relief. 4. The Secretary's complaint about the lack of particulars of any case will be cured once the parties and the trial judge agree on the safeguards for the protection of the privacy of the plaintiffs since each plaintiff is entitled to the documents filed in the Court. Rule 13.4(1) of UCPR 5. In his notice of motion (at [1]) the second defendant ('the Secretary') seeks summary dismissal of the plaintiffs' summons pursuant to r 13.4(1) without specifying particulars on which of the three sub-rules he relies. Submission clarifies that sub-rules (b) and (c) only apply. 6. In the very next paragraph ([2]) of the notice of motion, the Secretary impliedly concedes that at least some of the pleadings in the plaintiffs' summons either: (a) are not frivolous or vexatious; and (b) disclose reasonable cause of action and (c) are not an abuse of process. Secretary's submission: No reasonable cause of action claim 7. Exempting pleading [1] in the summons since it is a general statement, out of the remaining 29 pleadings the Secretary allows possibility that 20 of them should not be summarily dismissed. The implied concession that 20 pleadings have some merit renders the arguments offered by the Secretary up to and including paragraph [8] inapplicable as far as the no reasonable cause of action claim is concerned. That puts an end to the Secretary's arguments in relation to the 20 pleadings in the summons. Declaratory relief, abstract issues and standing 8. In paragraph [9]-[18] of his submission the Secretary raises arguments based on a number of decided cases without any reference to the legislative provisions, as if we were still in the year 1821, when there was very little by way of legislation, rather than in the year 2021 where, especially as the child protection is concerned, there is nearly a complete legal code regulating that particular jurisdiction."