CAC v Secretary, Department of Family and Community Services (No 2)

[2015] NSWSC 344

Supreme Court

New South Wales

Medium Neutral Citation:	CAC v Secretary, Department of Family & Community Services (No 2) [2015] NSWSC 344
Hearing dates:	19 March 2015
Date of orders:	31 March 2015
Decision date:	31 March 2015
Jurisdiction:	Equity Division
Before:	Lindsay J
Decision:	Order that the plaintiff pay the costs of the first and sixth defendants in the lump sum of $7,500.00
Catchwords:	Family law and child welfare – Child welfare under State legislation – Challenge in Supreme Court to proceedings pending in Children’s Court – Costs – Principles Practice – Costs – Jurisdiction – Care proceedings – Challenge to proceedings in Children’s Court - Principles
Legislation Cited:	Civil Procedure Act 2005 NSW Children and Young Persons (Care and Protection) Act 1998 NSW Supreme Court Act NSW Uniform Civil Procedure Rules 2005 NSW
Cases Cited:	CAC v Secretary, Department of Family and Community Services [2014] NSWSC 1855 CCR v PS (No 2) (1986) 6 NSWLR 622 Colquhoun v District Court of NSW (No 2) [2015] NSWCA 54 Colquhoun v District Court of NSW [2014] NSWCA 460 at [62] Hamod v State of New South Wales [2011] NSWCA 375 Oshlack v Richmond River Council (1998) 193 CLR 72. Re Felicity [2012] NSWCA 272 Re Kerry (No 2) – Costs [2012] NSWCA 194 Wilson v Department of Human Services; Re Anna (No 2) [2011] NSWSC 545 Zepinic v Chateaux Constructions (Aust) Ltd (No 2) [2014] NSWCA 99
Texts Cited:	-
Category:	Costs
Parties:	Plaintiff: Father of subject children First Defendant: Secretary, Department of Family & Community Services Sixth Defendant: Minister for Family and Community Services
Representation:	Counsel: Plaintiff: CR de Robillard First and Sixth Defendants: Ms M Neville Solicitors: Plaintiff: Catherine Treweeke Solicitors First and Sixth Defendants: NSW Crown Solicitor’s Office
File Number(s):	2014/00328723

Judgment

1. In a principal judgment published on 24 December 2014 I dismissed the plaintiff’s challenge (via an invocation of the Court’s inherent (parens patriae) jurisdiction, coupled with an application for judicial review) to the pendency of care proceedings relating to his children in the Children’s Court of NSW: see CAC v Secretary, Department of Family and Community Services [2014] NSWSC 1855.

2. As recorded at paragraph [128] of that judgment, I reserved to the parties an opportunity to make submissions about what, if any, costs orders should be made in the proceedings.

3. In paragraphs [129]-[134] of the judgment I also made some general observations about the Court’s approach to costs orders in protective proceedings.

4. The first and sixth defendants (respectively, the Secretary of the Department of Family and Community Services and the Minister for Family and Community Services) subsequently applied for an order that the plaintiff pay their costs in the lump sum of $7,500.

5. The Secretary was the plaintiff’s primary contradictor. The Minister was joined in the proceedings, on the application of the plaintiff, late in the piece. Nothing presently turns on any distinction between them. In the context of their costs application, they are in the same interest. For convenience, I refer to them jointly as “the State”.

6. Evidence adduced, without objection, on the hearing of the costs application was to the effect that the solicitor-client costs incurred by the State in the principal proceedings, up to and including the day preceding the hearing of the costs application, totalled $42,302.52. The immediate relevance of that figure, supported by tax invoices addressed by the Crown Solicitor’s Office to the Department of Family and Community Services, is its demonstration of a reasonable foundation for quantification of the State’s costs in the sum of $7,500.

7. On the hearing of the costs application, both sides of the record agreed that:

1. the observations made at paragraphs [129]-[134] of the principal judgment correctly state the law governing the decision to be made on the State’s costs application.

2. the jurisdiction of the Court extends to making an order for payment of costs quantified in a lump sum: Civil Procedure Act 2005 NSW, section 98(4)(c); Hamod v State of New South Wales [2011] NSWCA 375 at [813]-[820]; Zepinic v Chateaux Constructions (Aust) Ltd (No 2) [2014] NSWCA 99 at [28]-[ 29], [33] and [36]-[38]; Colquhoun v District Court of NSW [2014] NSWCA 460 at [62]; Colquhoun v District Court of NSW (No 2) [2015] NSWCA 54 at [6].

3. if (albeit over the plaintiff’s opposition) the Court were to determine that an order for costs should be made in favour of the State, quantification of those costs in the sum of $7,500 would be appropriate.

8. The proceedings in the Children’s Court, involving both the plaintiff and the State, are governed by section 88 of the Children and Young Persons (Care and Protection) Act 1998 NSW, which provides that an order for costs cannot be made in care proceedings unless there are exceptional circumstances justifying such an order.

9. That provision is not applicable to proceedings in the Supreme Court for judicial review or an exercise of the Court’s inherent, protective jurisdiction: Re Kerry(No 2) – Costs [2012] NSWCA 194 at [12]; Wilson v Department of Human Services; Re Anna (No 2) [2011] NSWSC 545 at [83]-[84] and [106]-[107].

10. In Re Kerry (No 2) – Costs, the Court of Appeal endorsed the approach taken by Hallen AsJ in Wilson v Department of Human Services; Re Anna (No 2) at [106]: There is no need to find “exceptional circumstances” before a costs order can be made in favour of a successful party in proceedings for relief against orders of the Children’s Court. In exercise of the Court’s discretion, upon a determination of who is to bear the burden of costs, it is necessary to consider the nature of the proceedings, the conduct of the parties and the Court’s findings.

11. That is consistent with “the ordinary rule” in protective proceedings (articulated by Powell J in CCR v PS (No 2) (1986) 6 NSWLR 622 at 640 and elsewhere) that the Court may exercise its discretion as to costs, not by reference to a rule that “costs follow the event”, but having regard to “what, in all the circumstances, seems proper”.

12. In each of Director-General, Family and Community Services; Re Felicity [2012] NSWCA 272 at [43], Re Kerry (No 2) – Costs [2012] NSWCA 194 at [19] and X v The Sydney Children’s Hospitals Network (2013) 85 NSWLR 294 at 311 [78] the word “appropriate” was used as a touchstone, rather than “proper”, but no significance attaches to that difference.

13. In any event, the starting point is to notice, first, the Court’s plenary power to make an order for costs (Civil Procedure Act 2005 NSW, section 98) and, secondly, the general rule (embodied in the Uniform Civil Procedure Rules 2005 NSW, rule 42.1) that costs follow the event.

14. The Supreme Court is not a “no costs” jurisdiction. Although the Court has a wide costs jurisdiction, the general rule remains that costs follow the event, unless the Court otherwise orders. Parties to proceedings in the Court conduct litigation at their own risk as to costs.

15. In the protective jurisdiction, because of the purposive nature of the jurisdiction (confirmed by Marion’s Case (1992) 175 CLR 218 at 258-259) and accumulated experience, the Court may proceed on the basis that it is generally necessary, and appropriate, to ask “What, in all circumstances, seems the proper order to make in relation to costs?”

16. This question gives due recognition to the following factors, amongst others:

1. The protective jurisdiction of the Court is generally governed by the “welfare principle” (that the welfare and interests of each person in need of protection, here the plaintiff’s children, are the paramount consideration) and an associated concern to ensure that whatever is done, or not done, is done in the interests, and for the benefit, of the particular person in need of protection.

2. The Court needs to be alive to the possibility that private individuals who would otherwise be concerned to act to protect a person in need of protection might be deterred from acting if bound to submit to a costs order on an unsuccessful application made by them to the Court, even though reasonably made: CCR v PS (No 2) (1986) 6 NSWLR 622 at 640F. Cf, Wilson v Department of Human Services; Re Anna (No 2) [2011] NSWSC 545 at [95]-[108].

3. Taking into account the best interests of children the subject of proceedings, the Court needs to hasten slowly in burdening a parent with an obligation to pay costs, particularly in circumstances in which a final outcome for the children in Children’s Court proceedings remains undetermined: Re Kerry (No 2) - Costs [2012] NSWCA 194 at [12] and [17]-[18].

4. Proceedings relating to the welfare of children, or any other person in need of protection, are not adversarial in the sense encountered in ordinary civil litigation but, rather, are attended by a strong, special public interest element.

17. Where proceedings in the Court invoke not only the Court’s protective jurisdiction, but also its jurisdiction (presently embodied, largely, in section 69 of the Supreme Court Act NSW) to grant administrative law relief, on an application for judicial review, different considerations may apply than those dominant in purely protective proceedings. That is because there is a separately identifiable public interest element, and a more adversarial flavour, in the supervision of a statutory tribunal or public official, than there is in protective proceedings. Where the Court’s administrative law jurisdiction is invoked, there may be more scope for operation of the policy that “costs follow the event” than there is in purely protective proceedings, where the operation of the “welfare principle” militates against adversarial litigation.

18. That said, every case falls to be determined on its particular facts.

19. In these proceedings, starting from with the proposition that “costs follow the event”, but moving quickly to the question “What is the costs order which, in all the circumstances, seems proper?”, the supplementary question arises: What is meant by “proper”?

20. It is not necessary to attempt an exhaustive definition of that term, “proper”, or to elevate it beyond its station. The Court has to deal with a wide variety of situations, as variable as the human condition, in exercise of its protective jurisdiction, and in the supervision of the Children’s Court.

21. Nevertheless, in these proceedings, it might be said that costs should not follow the event if, although there is a party capable of being characterised as “the losing party” (uncontroversially, the plaintiff), that party has acted on reasonable (albeit, possibly, mistaken) grounds and has acted reasonably in the conduct of proceedings in the Court.

22. Here, even if broad latitude is allowed to the plaintiff, he appears to me not to have acted reasonably in either the institution, or the conduct, of the current proceedings.

23. In the course of the principal judgment I made findings, inter alia, to the following effect:

1. The plaintiff’s persistence in running a procedural unfairness case with elements overlapping an apprehended bias case that had been earlier rejected by Adams J, suggested that the plaintiff lacked insight into the nature of the problem to be solved and potential solutions: [2014] NSW SC 1855 at [66].

2. Deny it though he may, from time to time the plaintiff appeared to have pursued a strategy of deflecting attention away from his parental deficiencies (and those of the children’s mother), and away from cooperation with an objective, independent professional assessment of the family: (i) by attacking the Department as the bearer of an unwanted message, the Minister as the provider of interim care and the Children’s Court as a statutory decision maker; (ii) by tenuous administrative law challenges to the powers and procedures of the Secretary, the Minister and the Children’s Court, coupled with marshalling of forensic support from the children’s mother and the independent representative for the oldest child; and (iii) by seeking, under cover of appeals to the Supreme Court’s protective jurisdiction, an urgent hearing on the merits of questions bearing on parental responsibility and care without allowing the children to benefit from living independently from their parents, and without allowing any judicial decision maker the benefit of an orderly, independent, professional assessment of the family: [67].

3. The Secretary had reasonable grounds for removal of the plaintiff’s children from the care of their parents, and the Children’s Court had reasonable grounds for making interim orders allocating parental responsibility of the children to the Minister: [96]-[97].

4. It was in the best interests of the children, jointly and severally, to make no orders affecting the subject matter, or future course, of the Children’s Court proceedings: [105].

5. The evidence adduced in the proceedings made a good “prima facie case” that the children, jointly and severally, were exposed to risks and safety concerns of the nature of those summarised in the Secretary’s preliminary care plan: [106], [109].

6. A flaw in the plaintiff’s case was that, whilst formally conceding that his care of the children may have been deficient in the past, and that he needed to take remedial steps to overcome any such deficiency, much of his energy was devoted to attacking the care afforded the children under the interim, parental responsibility of the Minister: [113]-[114].

7. In light of: (i) the family’s history of transience, participation in drugs, and a poor domestic environment, coupled with episodes of violence; and (ii) doubts about the capacity of the plaintiff to manage care of the children, and about his reliability in dealing with welfare authorities, the Court could not, at that stage, readily rely on undertakings proffered to it by him (or the children’s mother) as a condition of its allowing him, pending a determination of the Children’s Court proceedings, to resume care of the children or any one or more of them: [118].

8. The plaintiff lacked insight into what was required to permit all proceedings relating to his children to be dealt with both expeditiously and in the best interests of the children: [120].

24. The first day of the final hearing of the principal proceedings (15 December 2014) was cut short by the Martin Place Siege. That necessitated the allocation of a second hearing day (22 December 2014) on an expedited basis, given the plaintiff’s anxiety that he have the benefit of an early judgment of the Court, focused as he was on an attempt to have the children returned to his care before Christmas.

25. Despite the importance he attached to an early determination of the proceedings, the passage of time from the hearing before Adams J (on 18 November 2014), to the first day of the hearing before me (15 December 2014) and then to the second day of hearing before me (22 December 2014) did nothing to confine the plaintiff’s case. On the contrary. It was presented in a manner that was repetitive and (to paraphrase Colquhoun v District Court of NSW [2014] NSWCA 460 at [62]) characterised by conduct involving “disproportionate disputation”.

26. In these circumstances, the rationale for a departure from the rule that “costs follow the event”, ultimately grounded in the purposive character of the Court’s protective jurisdiction, is not served by declining to make an order against the plaintiff, as “the losing party”, to pay costs of his principal contradictor, the State.

27. The fact, which I accept, that the plaintiff is impecunious is insufficient reason to displace the rule that “costs follow the event”: Director-General, Family and Community Services; Re Felicity [2012] NSWCA 272 at [41]-[43]; Re Felicity; FM v Secretary, Department of Family and Community Services (No 3) [2014] NSWCA 226 at [60]. So too is the fact that the applicant for costs is the State: cf,Oshlack v Richmond River Council (1998) 193 CLR 72 at 107 [92]; Re Kerry (No2) – Costs [2012] NSWCA 194 at [9] and [13]. The fact that the plaintiff is currently dependent on the State for his welfare provides him with no licence to pursue Supreme Court proceedings without exposure to the risk of a costs order.

28. The plaintiff submits that the course of proceedings in the Children’s Court since publication of the principal judgment provides a basis upon which he can, and should, be relieved of any liability for the State’s costs.

29. I do not exclude the possibility that, at least in some cases, it might be open to the Court to have regard to “subsequent events” in determination of a costs dispute relating to a contested final hearing. However, I do not see this as such a case.

30. The plaintiff places before this Court selective, incomplete evidence about developments in the Children’s Court as a foundation for inviting the Court, in effect, to review findings made in the principal judgment. In continuing to re-agitate the case he sought to make at the final hearing in December he has gone beyond a simple invitation to the Court to find that he had reasonable grounds for instituting and maintaining Supreme Court proceedings designed to circumvent the Children’s Court proceedings. If his case is making headway in the Children’s Court, that simply serves as a refutation of his case, in this Court, that he could receive no fair hearing there.

31. He seeks also, to draw comfort from correspondence from the solicitor for his eldest daughter proffered to the Court as something akin to a supporting submission. I have taken it into account but, as it seems to me, it adds nothing of substance to the plaintiff’s own submissions.

32. Even if allowance is made for the personal circumstances of the plaintiff, and of the family, during the pendency of the Children’s Court proceedings, the plaintiff appears nevertheless to have exercised a deliberate choice in the commencement of Supreme Court proceedings as a means, he hoped, of circumventing the Children’s Court. In taking that course, he exposed himself to an order for costs.

33. In these proceedings, there is no warrant for a departure from the rule that costs follow the event.

34. Accordingly, I order that the plaintiff pay the costs of the first and sixth defendants in the lump sum of $7,500.00.

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Decision last updated: 01 April 2015