Connor v State of New South Wales (Department of Communities and Justice) (No 2)

[2021] FedCFamC2G 243

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Connor v State of New South Wales (Department of Communities and Justice) (No 2) [2021] FedCFamC2G 243  

File number(s):

SYG 2647 of 2020

Judgment of:

JUDGE DRIVER

Date of judgment:

10 November 2021

Catchwords:

COSTS – summary dismissal of anti-discrimination proceedings – consideration of factors against an order for costs

Legislation:

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 214

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)

Cases cited:

Connor v State of New South Wales (Department of Communities and Justice) [2021] FedCFamC2G 198

Division:

Division 2 General Federal Law

Number of paragraphs:

11

Date of last submission/s:

8 November 2021

Date of hearing:

Decided without oral hearing

Place:

Sydney

ORDERS

SYG 2647 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

ROBERT CONNOR

First Applicant

CASEY HARDEY-GRIFFITH

Second Applicant

AND:

STATE OF NEW SOUTH WALES (DEPARTMENT OF COMMUNITIES AND JUSTICE)

First Respondent

PETER ROSE

Second Respondent

SKY HIPWELL

Third Respondent

ORDER MADE BY:	JUDGE DRIVER
DATE OF ORDER:	10 NOVEMBER 2021

THE COURT ORDERS THAT:

1.The Application in a Case lodged on 4 November 2021 is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE DRIVER:

INTRODUCTION AND BACKGROUND

1. By an Application in a Case lodged on 4 November 2021, the respondents in the principal proceedings, the State of New South Wales represented by the Department of Communities and Justice (Department) and two individuals being officials of the Department, seek an order for costs fixed in the sum of $9,000 under s 214 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (Federal Circuit and Family Court Act) and rule 22.02(2)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Court Rules). The application for costs is consequential to interlocutory orders I made on 28 October 2021 summarily dismissing the application by the applicants (Mr Connor and Ms Hardey-Griffith) seeking relief under the Disability Discrimination Act 1992 (Cth) and Racial Discrimination Act 1975 (Cth) in relation to the removal of their children by the Department. The application for costs is vigorously opposed by Mr Connor and Ms Hardey‑Griffith.

2. The application for costs is supported by the affidavit of the respondents’ solicitor, Ms Schumacher, made on 4 November 2021.  It should be noted at the outset that the proceedings were conducted in an exemplary fashion by Ms Schumacher and others at her firm.  The claim for costs is modest in terms of the work done and costs incurred by the respondents.

3. Regrettably, what passes for submissions on the issue of costs sent to chambers by email by Mr Connor on 8 November 2021 constitutes a tirade. 

4. The parties consented to the Court dealing with the costs application on the papers.

   CONSIDERATION

5. These were difficult proceedings.  As I noted in my principal judgment[1] the contest between the parties was an unequal one.  The Court attempted to arrange pro bono representation for the applicants but was unsuccessful. They proved incapable of articulating a coherent claim of racial or disability discrimination.  It is apparent that they do suffer from disabilities.  Mr Connor, in particular, suffers from emotional dysregulation, which was obvious at times during hearings in the proceedings and is apparent in his post hearing submissions.  That is explicable also by the circumstances in which the proceedings arise.  Mr Connor and Ms Hardey-Griffith have had their children removed by the Department.  They want them back.  Their attempts to achieve this through the Children’s Court have proved to be fruitless.  The case before this Court was, in my view, a “last gasp” attempt to achieve a positive outcome.  With the benefit of hindsight, it was probably doomed to failure from the outset.

   [1] Connor v State of New South Wales (Department of Communities and Justice) [2021] FedCFamC2G 198

6. The respondents’ solicitors did their best to conduct the proceedings with tact while acting in the interests of their clients.  The result has been a positive outcome for the respondents at the interlocutory stage.  In the circumstances, it is understandable for the respondents to seek a costs order, consistently with the general principle that costs follow the event. 

7. I had serious misgivings about the wisdom of seeking a costs order and required it to be sought formally by Application in a Case supported by an affidavit.  As I anticipated, the application for costs proved to be the “straw that broke the camel’s back” in terms of Mr Connor’s efforts to control his emotions.  As he sees it, having taken away his children, the Department now wishes to break him financially.  His rage and his sense of injustice shines through his email submissions.

8. Section 214 of the Federal Circuit and Family Court Act confers a wide discretion on the Court to award, or not to award costs. The Court Rules support that broad statutory discretion. That discretion is not confined. In particular, there is no right or entitlement to an order for costs.

9. In the present case, the respondents, through their legal representatives, have at all times acted reasonably and responsibly and have emerged successful.  As against that, the proceedings were resolved at the interlocutory stage which must represent a significant costs saving for the State.  The individual respondents were supported in the proceedings and had common representation with the Department.  It is the taxpayers of the State who bear the respondents’ legal costs.

10. I assume that if a costs order is made, it would be enforced.  There would seem to be no point in seeking a costs order otherwise.  Mr Connor has made it perfectly clear that he will pay nothing.  The enforcement of a costs order would in these circumstances be problematic and provide opportunities for ongoing conflict between Mr Connor and the Department.  That ongoing conflict would, in my view, be best avoided.  The principal proceedings were not mischievous.  They relate to a real problem, being the removal of the applicants’ children.  Mr Connor’s grievance in particular is real and runs deep.  The wound will probably never heal, but the Court can at least avoid breaking the scab through a costs order.

    CONCLUSION

11. I conclude, in the exercise of my discretion, that a costs order in respect of the principal proceedings should not be made.  I will order that the Application in a Case lodged on 4 November 2021 be dismissed with no order as to costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver.

Associate:

Dated:       10 November 2021