Department of Health and Human Services v Smith (Costs)
[2020] VSC 268
•18 May 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2020 00065
| SECRETARY TO THE DEPARTMENT OF HEALTH AND HUMAN SERVICES | Appellant |
| v | |
| CHILDREN’S COURT OF VICTORIA | First Respondent |
| GEORGE SMITH (a pseudynom) | Second Respondent |
| WENDY SMITH (a pseudynom) | Third Respondent |
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JUDGE: | RIORDAN J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF JUDGMENT: | 18 May 2020 |
CASE MAY BE CITED AS: | Department of Health and Human Services v Smith (Costs) |
MEDIUM NEUTRAL CITATION: | [2020] VSC 268 |
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COSTS – Unsuccessful appeal against Children’s Court interim accommodation order – Whether departure from usual order as to costs justified because appeal not brought unreasonably, appellant acting in the public interest for the protection of a child and orders for costs not usually made in such applications in the Children’s Court – Appellant ordered to pay respondents’ costs.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | DHSS Legal Services Branch | |
| For the Second Respondent | J Connolly | Stephen Peterson Lawyers |
| For the Third Respondent | Bowen Barristers & Solicitors |
HIS HONOUR:
By notice of appeal filed 9 January 2020, the appellant (‘the Secretary’) appealed against an interim accommodation order made by the Children’s Court on 8 January 2020 which permitted the second respondent, a father, to have contact with his child of less than two months subject to supervision by the third respondent, the child’s mother. The appeal was brought pursuant to s 271 of the Children, Youth and Families Act 2005 (Vic) (‘the Act’).
The appeal was heard on 16 and 17 January 2020. On 17 January 2020, I dismissed the appeal and the second and third respondents (‘the respondents’) have each applied for an order for the costs of the appeal.
Appellant’s submissions
The Secretary submits there should be no order for costs for the following reasons:
(a) Section 271 of the Act provides that persons, including the Secretary, may appeal to the Supreme Court if the Children’s Court makes an interim accommodation order.
(b) The principle that costs follow the event does not apply in Family Division proceedings of the Children’s Court, including in relation to interim accommodation orders. The usual order in such proceedings is for each party to bear their own costs because such proceedings:
(i) are not criminal proceedings; and
(ii) are brought by the Secretary for the benefit of the child with whom the Department of Health and Human Services (‘the Department’) is concerned.
(c) There was a reasonable basis for the Secretary to bring the appeal, which was brought after it had taken the ‘necessary investigative steps’. There was no significant failing on the part of the Secretary that would warrant an award of costs against it.
Second respondent’s submissions
The second respondent makes his application under s 24 of the Supreme Court Act 1986 (Vic), which provides that costs are within the discretion of the Court. It is submitted that the Court should exercise its discretion to award costs for the following reasons.
The principles governing costs orders in protection applications in the Children’s Court do not apply to appeals arising out of s 271 of the Act for the following reasons:
(a)The Secretary’s decision to intervene in the Children’s Court cannot be equated to a decision to initiate an appeal.
(b)The decision to initiate an appeal was presumably made after consideration of:
(i) the material presented to the Children’s Court;
(ii) any further material available to the Secretary;
(ii) any assessments and conclusions made by Department staff; and
(iv) a risk analysis.
(c)This consideration was done by case workers and senior management within the relevant Department office, local representatives and senior management of the child protection litigation office, representatives of the Department’s head office and the office of professional practice, and experienced counsel.
(d)The public policy analysis that goes into the general practice in the Children’s Court is informed by the necessarily reactive and urgent subject matter of those proceedings.
(e)The decision to appeal was made after an adverse determination at first instance and with an opportunity for careful review.
(f)The decision to appeal caused the respondents to incur significant costs.
(g)A statutory body which appeals and causes others to incur such additional costs should be required to pay such costs if the appeal is unsuccessful.
The fact that there is no allegation of misfeasance or other misconduct does not justify a departure from the usual order as to costs.
The rule that a successful party is ‘generally entitled to his or her costs’ has been recently confirmed by the High Court,[1] and has been held to apply to criminal proceedings, including proceedings under the Proceeds of Crime Act 2002 (Cth).[2]
[1]Northern Territory v Sangare (2019) 265 CLR 164, 173 [25].
[2]Commissioner of Australian Federal Police v Opal Storm Pty Ltd [2018] VSCA 301, [34] (Priest, Ashley and Weinberg JJA).
The second respondent applies for costs in the quantum set out in the Victoria Legal Aid Handbook Table A2, namely $598 for counsel’s preparation, $2,140 for the first day’s appearance and $1,939 for the second day’s appearance, for a total of $4,677.
Third respondent’s submissions
The third respondent submitted that an order for costs should be made against the Secretary for the following reasons:
(a)Given the appeal was unsuccessful, it is self-evident that the litigation was unwarranted.
(b)If the Secretary’s opposition to costs is accepted, it would be a significant deterrent to all parents from conducting an appeal.
(c)Costs are made in the Children’s Court against the Secretary for failing to file the requisite court reports in a timely manner resulting in costs thrown away.
(d)It is a prerequisite that lawyers having a grant of aid from Victoria Legal Aid in Family Division matters are to seek costs against the Secretary where warranted.
(e)The Secretary failed to clarify with the investigating police officer the precise nature of the child’s alleged disclosure relating to the alleged sexual abuse by the second respondent.
(f)No new facts were introduced at the hearing of the appeal that were not previously known by the parties.
(g)The case worker’s evidence that she ‘always believed children’ and therefore believed the allegation of sexual abuse made againt the second respondent demonstrated a lack of objectivity.
(h)The Secretary had not appealed the decisions of the Children’s Court on 26 November 2019 or 19 December 2019, neither of which had been breached. The decision of 8 January 2020 maintained similar conditions, although the orders allowed the second respondent to stay in the placement overnight.
(i)The only change of circumstance between the bringing of the application and the appeal was that the respondents had adequately demonstrated that they were able to keep the child safe.
(j)The appeal process was enormously stressful and inconvenient to the respondents.
(k)The fact that the Court had commended the Secretary for the manner in which it conducted the case was not a reason to impact on the Court’s discretion with respect to costs.
Accordingly, the third respondent applies for costs in the quantum set out in the Victoria Legal Aid Handbook Table A2, namely $1,590 for legal preparation, $289 for conference fee, $2,140 for the first day’s appearance, $1,939 for the second day’s appearance, $1,939 for the third day’s appearance and $708.86 for travel expenses, for a total of $8,605.86.
Relevant legislation
Section 528(1) of the Act provides as follows:
The Court has and may exercise in relation to all matters over which it has jurisdiction all the powers and authorities that the Magistrates’ Court has in relation to the matters over which it has jurisdiction.
Section 131 of the Magistrates’ Court Act 1989 (Vic) relevantly provides as follows:
(1)The costs of, and incidental to, all proceedings in the Court are in the discretion of the Court and the Court has full power to determine by whom, to whom and to what extent the costs are to be paid.
…
(2A)In exercising its discretion under subsection (1) in a proceeding, the Court may take into account any unreasonable act or omission by, or on behalf of, a party to the proceeding that the Court is satisfied resulted in prolonging the proceeding.
Relevant authorities
In J v Lieschke,[3] the High Court allowed an appeal against a decision of the New South Wales Court of Appeal in the following circumstances:
[3](1987) 162 CLR 447 (Mason, Wilson, Brennan, Deane and Dawson JJ).
(a) The second respondent apprehended the appellant/mother’s five children and brought them before the Children’s Court alleging that each was a neglected child within the meaning of the Child Welfare Act 1939 (NSW).
(b) The Magistrate refused the appellant/mother’s application to appear in relation to four of her children.
(c) The appellant/mother’s application for prohibition, mandamus and injunction was refused by the Supreme Court and the Court of Appeal.
(d) The High Court allowed the appeal and, relevantly, awarded the costs of the appeal against the second respondent.
It should be noted that the trial judge ordered costs against the appellant,[4] but the Court of Appeal vacated that costs order and made no order as to costs in accordance with the agreement of all parties.[5]
[4]Shales v Thompson (1984) 9 Fam LR 660 (Cantor J).
[5]Shales v Lieschke (1985) 3 NSWLR 65, 82-3 (Kirby P), 83 (Mahoney JA), 90 (Priestley JA).
In Secretary to the Department of Human Services v Hanrahan,[6] Hampel J considered an appeal against an order of a Magistrate ordering costs against the Secretary. The relevant facts were as follows:
[6](Supreme Court of Victoria, Hampel J, 10 December 1996) (‘Hanrahan’).
(a) On 27 February 1996, the appellant/Secretary issued a protection application pursuant to the Children and Young Persons Act 1989 (Vic).
(b) On 9 August 1996, the Magistrate in a reserved decision ordered costs against the appellant/Secretary after the protection application was withdrawn and struck out with the consent of the parties.
(c) The power of the Magistrates Court to order costs under the combined effect of s 24 of the Children and Young Persons Act1989 (Vic) and s 131 of the Magistrates Court Act 1989 (Vic) was not in dispute. However, the appellant/Secretary contended that the costs order should be set aside on the basis that:
(iii) the relevant department’s job was a difficult one;
(iv) the relevant department was justified in becoming involved in the matter and issuing a protection application when it did; and
(v) the circumstances of the child had changed and the changes justified the withdrawal of the application which was properly issued originally; and
(vi) the history of the matter militated against the grant of costs.
Hampel J observed that protection application proceedings are not criminal proceedings.[7] They are brought for the benefit of the subject children.[8] He considered that the discretion as to costs may be affected by:
[7]Therefore the principle in Latoudis v Casey (1991) 170 CLR 534 does not apply.
[8]M v M [1993] 1 VR 391, 403 (Nathan J).
(a) whether circumstances have changed between the bringing and determination of the application;
(b) the extent of the investigation by the relevant department when the application is brought;
(c) the circumstances in which the application is withdrawn;
(d) the amount of notice given by the relevant department of its intention to withdraw; and
(e) whether the relevant department’s action was irresponsible or mischievous.
Hampel J dismissed the appeal because:
(a) of the strong presumption in favour of the correctness of discretionary decisions;
(b) it had not been demonstrated that irrelevant considerations had been taken into account or that relevant considerations had not been taken into account; and
(c) the decision was not on its face plainly wrong.
More relevantly for the purposes of this application, he ordered the Secretary to pay the respondent’s costs of the appeal.
In Perry v Department of Human Services,[9] Cummins J allowed an appeal pursuant to s 80B of the Children and Young Persons Act 1989 (Vic). He adopted the views of Hampel J in Hanrahan and ordered the relevant department to pay the costs of the appellant.
[9] (Supreme Court of Victoria, Cummins J, 4 March 1997).
Conclusion
In my opinion, it is appropriate that the Secretary be ordered to pay the respondents’ costs as sought, for the following reasons.
There is no dispute that the Court has jurisdiction under s 24 of the Supreme Court Act 1986 (Vic) to order the payment of costs in the exercise of its discretion.
With few exceptions, the usual order is that a successful party is entitled to an award of costs in its favour. As McHugh J said in Oshlack v Richmond River Council:
The expression the ‘usual order as to costs’ embodies the important principle that, subject to certain exceptions, a successful party in litigation is entitled to an award of costs in its favour. The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party.[10]
His Honour went on to say that ‘there are very few, if any, exceptions to the usual order as to costs outside the area of disentitling conduct’.[11]
[10](1998) 193 CLR 72, 97 [67] (McHugh J in dissent but not with respect to these principles).
[11]Ibid 98 [70].
Although it can be readily accepted that the Secretary has a significant role in acting in the public interest for the protection of children, as the above authorities demonstrate, that does not make the Secretary immune from the application of the principles for the usual order of costs in this Court.
In my opinion, the role of the Secretary is not significantly different to the role of other regulatory authorities who conduct litigation. In Quinn v Law Institute of Victoria Ltd (No 2),[12] the Court of Appeal rejected a submission of the Law Institute that there should be no order as to the costs of an appeal because of the public function served by the Law Institute with respect to disciplinary proceedings. The Court said:
The institute’s position in this respect is no different from that of any other regulatory agency which is a party to proceedings before a domestic tribunal. The Transport Accident Commission, the Victorian WorkCover Authority and the Environment Protection Authority Victoria regularly appear as respondents to review proceedings in the Victorian Civil and Administrative Tribunal in respect of decisions made in the exercise of their statutory powers. Decisions of that Tribunal are appellable on a question of law. If the decision-making agency seeks unsuccessfully to defend such an appeal, it will be ordered to pay the appellant’s costs.[13]
[12](2007) 27 VAR 13 (Maxwell P, Chernov and Nettle JJA).
[13]Ibid 14-15 [7].
Similarly, with respect to the proposition that costs on appeal should follow the practice with respect to costs in the tribunal below, the Court of Appeal said:
Nor is the present costs question to be likened to the question which arises at the conclusion of disciplinary proceedings in which the institute is prosecutor. As counsel for the institute pointed out, s 162 of the Legal Practice Act 1996 provided that no order for costs is to be made against the institute in such proceedings except in exceptional circumstances. The evident policy of that provision is that the institute should not be deterred by the risk of an adverse costs order from prosecuting charges of misconduct before the tribunal. That is a very important function, carried out in the public interest.
No such provision was made, and no such considerations apply, in relation to an appeal like the present. For the reasons already given, the institute must decide, as any respondent to such an appeal must decide, whether the decision under appeal is likely to be affirmed or quashed. If it defends the appeal and loses, it should pay the appellant’s costs.[14]
[14]Ibid 15 [9]-[10].
Although I do not consider that the Secretary’s decision to appeal was unreasonable, or that the Secretary misconducted itself in the conduct of the appeal, in my opinion, these factors are not sufficient to justify a departure from the usual rule as to costs or deprive the respondents of their rights to indemnity.
Orders
I will order that the appellant pay the second respondent’s costs of the appeal fixed at $4,677 and the third respondent’s costs of the appeal fixed at $8,605.86.
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