Department of Community Services v SM and MM

[2008] NSWDC 68

Reported Decision: 6 DCLR (NSW) 384

District Court

CITATION:	Department of Community Services v. SM and MM [2008] NSWDC 68
HEARING DATE(S):	18/2/08 - 20/2/08
JUDGMENT DATE:	6 May 2008
JURISDICTION:	Civil
JUDGMENT OF:	Garling DCJ at 1
DECISION:	Director General Department of Community Services is to pay the legal costs of SM and MM.
CATCHWORDS:	Costs - Child care appeal - Exceptional circumstances
LEGISLATION CITED:	Children and Young Persons (Care and Protection) Act, 1998 as amended Civil Procedure Act 2005
CASES CITED:	SP v. Department of Community Services [2006] NSWDC 168 Murray Publishers Pty. Ltd. v. Valuer-General [1994] 84 LGERA 13 Yacoub v. Pilkington (Australia) Ltd. 2007 NSWCA 290 San v. Rumble (No. 2) 2007 NSWCA 259 R v. Kelly (Edward) 2000 1 QB 198 R v. Buckland [2000] 1 WLR 1262 Ho v. Professional Services Review Committee No. 295 [2007] FCA 388 Awa v. Independent News Auckland (1996) 2 NZLR 184
PARTIES:	Director General Department of Community Services SM and MM
FILE NUMBER(S):	194/08
COUNSEL:	M.W. Anderson (Plaintiff/Department) B. MacRae, Solicitor (Defendants/Parents) J.F. Viney (Child)
SOLICITORS:	Crown Solicitor (Plaintiff/Department) A.C. Knibb Kaine & Associates (Defendants/Parents)

JUDGMENT

1 I recently dismissed an appeal by the Director General against an order of the Children’s Court. In my reasons for dismissing the appeal I said that the appeal had no merit and at no stage had any merit. A Magistrate made a proper decision which should have been accepted by the Department. I did not make an order immediately returning the child to his parents as I thought it was in the child’s best interests to remain with his grandparents until the end of the school term. Other than that I agreed with the Magistrate’s orders.

2 The decision of the Department to oppose the restitution of the child to his family was, in the view of the Magistrate and of myself, without justification. That is a decision made by the Department in May, 2007 which would have resulted in the child being in care until 18 years of age. The Department’s decision was not based on the available expert evidence. The expert evidence was to the effect that the mother needed to attend to resolving some difficulty in bonding with the child and that certain steps should be taken over a period of 9 months and that the child should then be returned to the parents. At no stage was I aware of any evidence which would have precluded the father from looking after his child.

3 I became aware, at the conclusion of the case, that the parents had been declined Legal Aid and had to pay their own costs of opposing the Department’s appeal. After I enquired about the position as to costs an application was made on behalf of the parents for the Department to pay their costs of the appeal.

4 Section 88 of the Children and Young Persons (Care and Protection) Act, 1998 as amended provides:

The Children’s Court cannot make an order for costs in care proceedings unless there are exceptional circumstances that justify it in doing so.

5 I have been handed a decision of his Honour Judge Rein of this Court in SP v. Department of Community Services [2006] NSWDC 168 in which his Honour discusses exceptional circumstances. His Honour said in paragraph 29:

Mr. Saidi drew my attention to the dictionary definition of “exceptional” and cases on exceptional circumstances in other contexts. I think these are of little assistance. The phrase “exceptional circumstances” used in s 88 is very context dependent, and since context is paramount the Court must consider what the section means in the context of costs orders.

His Honour says:

Cases where circumstances are found or not found to be exceptional all turn on their own facts and circumstances (see Murray Publishers Pty. Ltd. v. Valuer-General [1994] 84 LGERA 13). Unusual circumstances do not make the circumstances exceptional.

6 He then gives some examples. In paragraph 36 his Honour sets out matters which might arguably fall within the description of exceptional circumstances. I do not disagree with any of those matters set out by his Honour.

7 In Yacoub v. Pilkington (Australia) Ltd. 2007 NSWCA 290 Justice Campbell set out the law relating to exceptional circumstances in Rule 31.18 of the UCP Rules. He referred to San v. Rumble (No. 2) 2007 NSWCA 259 and he said:

I shall state such of the conclusions as seem to me to be applicable in the construction of Rule 31.18 (which relates to exceptional circumstances) .
(a)Exceptional circumstances are out of the ordinary course or unusual or special or uncommon. They need not be unique or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered. (R v. Kelly (Edward) 2000 1 QB 198).
(b)Exceptional circumstances can exist, not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors (R v. Buckland [2000] 1 WLR 1262).
(c)Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. (Ho v. Professional Services Review Committee No. 295 [2007] FCA 388.
(d)In deciding whether exceptional circumstances are exceptional within the meaning of a particular statutory provision one must keep in mind the rationale of that particular statutory provision (R v. Buckland).
(e)Beyond these general guidelines whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case. (Awa v. Independent News Auckland (1996) 2 NZLR 184.)

His Honour then said:

Any decision about whether there are exceptional circumstances would need to bear in mind the explicit statement of objectives of a Court in the management of litigation.

And he referred there to sections 56 to 59 of the Civil Procedure Act 2005.

8 It is argued on behalf of the appellant that the fact that the respondents to the appeal had to pay their legal costs was not an exceptional circumstance and that this was simply an appeal which was dealt with by the Court and there were no exceptional circumstances.

9 I disagree. I believe that there are exceptional circumstances for making an order for costs. Those exceptional circumstances are:-

(1)The appeal had no merit.
(2)The Magistrate made the only reasonable order available.
(3)There were no grounds to seek an appeal from that order. There was no additional evidence which may have caused this Court to reach a different decision from the Magistrate. (4)This appeal related to a 5 year old child. The Department’s position was that that child should be put in care until he attained 18 years of age and be removed from his parents. The parents had every right and justification in resisting such an application and, indeed, had to.

10 For some reason of which I am not aware they were not entitled to Legal Aid. The Department, of course, fund their appeal. The child is represented and those costs are funded. However, the parents, who really had to appear in Court and be legally represented, were not funded and had to meet their legal expenses. In the majority of these appeals all parties appear to be funded. I do not agree that the fact that these parents had to pay their legal costs as a result of the Department’s appeal is not relevant to the consideration of exceptional circumstances. I believe it is very relevant.

11 I have concluded, for all those reasons, that the Department should pay the costs of the parents. The formal order I make is that the Director General Department of Community Services is to pay the legal costs of SM and MM.

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