Director-General Community Services Directorate v HJ
[2018] ACTSC 6
•30 January 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Director-General Community Services Directorate v HJ |
Citation: | [2018] ACTSC 6 |
Hearing Date: | 29 November 2017 |
DecisionDate: | 30 January 2018 |
Submissions Last Received: | 1 December 2017 |
Before: | McWilliam AsJ |
Decision: | 1. The appeal is allowed. 2. The order of the Childrens Court made on 5 June 2017 is set aside. 3. The matter is remitted to the Childrens Court for further determination according to law. |
Catchwords: | APPEAL – COSTS – Children and Young People Act 2008 (ACT) – appeal from order made for costs to be paid by the appellant in proceedings brought under the care and protection chapters – whether Children and Young People Act 2008 (ACT) operates to the exclusion of the general costs discretion under the Court Procedures Rules 2004 (ACT) – whether the specific provisions of the Children and Young People Act 2008 (ACT) overrule the more general costs provisions in the Court Procedures Rules 2004 (ACT) – legal error established – appeal upheld |
Legislation Cited: | ACT Civil and Administrative Tribunal Act 2008 (ACT) s 48 Acts Interpretation Act1901 (Cth) s 15AA Court Procedures Rules 2006 (ACT) rr 1721, 1722 |
Cases Cited: | Casey v Alcock [2009] ACTCA 1; 3 ACTLR 1 Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 |
Tests Cited: | Explanatory Memorandum, Children and Young People Bill 1999 (ACT) Explanatory Statement, Children and Young People Bill 2008 (ACT) Pearce DC and Geddes RS, Statutory Interpretation in Australia (8th ed, LexisNexis Butterworths, 2014) |
Parties: | Director-General, Community Services Directorate (Appellant) HJ (First Respondent) [not published] (Second Respondent) [not published] (Third Respondent) [not published] (Fourth Respondent) |
Representation: | Counsel J Kellaway (Appellant) G Stagg (First Respondent) J Haddock (Fourth Respondent) |
| Solicitors ACT Government Solicitor (Appellant) DDCS Lawyers (First Respondent) Legal Aid ACT (Fourth Respondent) | |
File Number: | CA 53 of 2017 |
Decision under appeal: | Court: ACT Childrens Court Before: Chief Magistrate Walker Date of Decision: 5 June 2017 Case Title: HJ v Director-General, Community Services Directorate Court File Numbers: KE 2716 |
This appeal is brought by the Director-General, Community Services Directorate (the appellant) from orders made on 5 June 2017. It concerns the award of costs in the statutory context of the Children and Young People Act 2008 (ACT) (CYP Act) and in particular, what is meant by the words in s 724(2) of the CYP Act: ‘The parties to a proceeding must bear their own costs unless a court exercising jurisdiction under this Act orders otherwise’. Through this appeal, the appellant seeks to clarify when a court making a decision under the CYP Act has the power to order otherwise.
Procedural history
The focus of the appeal being on an issue of statutory construction, the factual circumstances underlying the proceedings below may be briefly stated. The proceedings below were heard in the Childrens Court, as it is known pursuant to s 287 of the Magistrates Court Act 1930 (ACT). I will refer to it as the Children’s Court unless it is part of an extract or quotation.
The genesis for the proceedings below was the extension of existing orders made under the care and protection chapters (defined in s 336 of the CYP Act) in relation to three children, one of whom was a child referred to as ‘D’.
The appellant had sought to remove D from the care of her maternal great-grandmother, and threatened to do so immediately, which resulted in a cross-application by the maternal great-grandmother. The appellant’s concern (or that of his delegates) was the first respondent’s age and future capacity to continue to care for D, as well as a view that it would be preferable for D to be placed with her two siblings, who were residing together with other family members pursuant to separate care and protection orders.
Those proceedings were resolved on 20 December 2016, following which the maternal great-grandmother, with whom D resides, successfully applied for her legal costs of the proceedings to be paid by the appellant. It is that costs order, made on 5 June 2017 by the Chief Magistrate, which the appellant now seeks to overturn.
The parties
The first respondent is the maternal great-grandmother of D.
The second and third respondents are respectively the mother and father of the three children. The second respondent did not appear on the appeal, although she attended Court during the hearing of it. The third respondent was not an active party either in the proceedings below or on appeal.
The child, D, is the fourth respondent on this appeal. A children’s representative appeared on her behalf, also representing the interests of the other two children.
I was satisfied that all interested parties either had representation at the bar table, or were personally in Court and had chosen not to participate, or otherwise had notice of the appeal.
Reasoning of the court below
In an oral judgment delivered on 5 June 2017, the Chief Magistrate referred to s 724 of the CYP Act and stated:
This is a deviation from the usual position in civil litigation in which the successful party usually gets its costs.
I am satisfied that the section is not to be read down with regard to section 725 of the Act; that is, there is no requirement, [when] considering an application for costs, that the applicant must establish that the opposing party was frivolous, vexatious or dishonest in bringing its application, nor that exceptional circumstances are required to justify the order. The court has a general discretion to deviate from the basic rule as to costs provided for in section [724] subsection (2) though there is a more specific basis to do so provided for in section 725. The decision of Mossop AsJ, as [his Honour] then was, in W v Director-General Community Services Directorate [2014] ACTSC 404, in my view, supports this interpretation.
The reference in the above reasons to a ‘general discretion’ must be taken to be a short hand reference to the general discretion to award costs under r 1721 of the Court Procedures Rules 2006 (ACT) (Rules).
The Chief Magistrate then referred to the history and the evidence in the proceedings, ultimately concluding as follows:
I am satisfied that the justice of the case requires that the Director-General pay [the first respondent’s] costs. I, therefore, award costs to the second cross-applicant of her application filed on 28 April 2016 and the costs of this application on a party-party basis, as agreed or assessed, within 28 days of this order.
Issues on appeal
Although the notice of appeal filed 6 July 2017 raised a number of grounds, the only issue ultimately pressed concerned the aforementioned question of the power given to a court exercising jurisdiction under the care and protection chapters of the CYP Act to make a costs order and the scope of discretion intended by the words ‘orders otherwise’ found in s 724 of the CYP Act (set out in full below).
The appellant argued the court below erred, in that the power to award costs is limited to the specific circumstances set out in Pt 19.6 of the CYP Act, such as the application being frivolous, vexatious, or dishonest, or there being exceptional circumstances justifying the order, or a person failing to attend a hearing or disobeying an order. The appellant further argued none of the circumstances outlined in the CYP Act existed in the present case.
The first respondent supported the conclusion of the Chief Magistrate that the words used in s 724 of the CYP Act preserves a general unfettered discretion to award costs. In separate detailed submissions, the children’s representative also supported the construction of the Chief Magistrate.
The task for this Court on appeal is to interpret the CYP Act, striving to give a harmonious construction to the provisions of the statute read together. Where there is an apparent conflict, the Court must identify which is the leading provision and which is the subordinate provision, adjusting the meaning of the competing provisions to achieve the result which best gives effect to the purposes and language of the provisions, while maintaining the unity of all the statutory provisions: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (Project Blue Sky) at [70], see also Leeming M, Resolving Conflicts of Laws (Federation Press, 2011) pp 46-47 and the cases there-cited.
Depending on the outcome of these questions of statutory construction, it may be necessary to determine whether the facts as found by the Chief Magistrate permit disposal of the proceedings or require the matter to be remitted.
Summary of findings
For the reasons that follow, the construction of the CYP Act in the court below was erroneous and the appeal should be allowed.
Properly construed, and notwithstanding that the drafting of the CYP Act has tended to obscure rather than clarify the position on costs, the discretion to award costs in civil proceedings brought under the care and protection chapters of the CYP Act is limited to the circumstances identified by the CYP Act.
Section 724 of the CYP Act does not separately empower the Court to exercise a general discretion to deviate from the basic rule that the parties to a proceeding under the care and protection chapters must bear their own costs. Given the Children’s Court is a creature of statute, a general discretion to award costs is to be found in r 1721 of the Rules, which apply by virtue of s 69(2) of the Court Procedures Act2004 (ACT) (Court Procedures Act). However, taking into account the text, context and purpose of the provisions, including by reference to extrinsic materials, Pt 19.6 the CYP Act operates to the exclusion of the general costs discretion under r 1721 of the Rules.
Further, the same result would be arrived at even if the construction of the court below were applied, because that construction would create an apparent conflict between the costs provisions in the CYP Act and the general costs discretion under the Rules. Applying settled principles of statutory construction, the specific provisions of the CYP Act overrule the more general costs provisions in the Rules.
As to the question of relief, although all parties, and indeed the Court, were concerned to resolve the dispute without the further incurring of legal costs, as no finding of fact was made as to whether the circumstances were exceptional, and the parties have not been heard on discretionary considerations of weight, the matter ought be remitted for further determination according to law.
Statutory framework
Part 19.6 of the CYP Act forms part of the relevant statutory framework. As the reasoning below relies in part on the context and structure of these sections of the CYP Act in determining the purpose of s 724 specifically and of Pt 19.6 as a whole, it is convenient to set the sections out here in full, along with the relevant extracts of explanatory statements accompanying the legislation, also discussed below.
Section 724 of the CYP Act provides:
Costs—parties bear own unless court orders otherwise
(1) This section applies to a proceeding under the care and protection chapters including—
(a) an interlocutory proceeding; and
(b) an appeal from a decision made under the care and protection chapters.
(2) The parties to a proceeding must bear their own costs unless a court exercising jurisdiction under this Act orders otherwise.
Section 725 of the CYP Act provides:
Costs—frivolous, vexatious, dishonest application
(1) This section applies to a proceeding under the care and protection chapters including—
(a)an interlocutory proceeding; and
(b)an appeal from a decision made under the care and protection chapters.
(2) A court exercising jurisdiction under this Act may, on application or on its own initiative, order the payment of costs in a proceeding if satisfied that—
(a)an application in the proceeding is frivolous, vexatious or dishonest; or
(b)there are exceptional circumstances that justify the order.
(3) A person who applies for an order for costs under this section must give a copy of the application to the party from whom the costs are sought.
Section 726 of the CYP Act provides:
Costs—parties bear own costs unless order otherwise
(1) This section applies to a proceeding under the care and protection chapters including—
(a)an interlocutory proceeding; and
(b)an appeal from a decision made under the care and protection chapters.
(2) A court exercising jurisdiction under this Act may, on application or on its own initiative, order someone's costs be paid if the hearing of a proceeding is adjourned because—
(a)someone else required to attend the hearing did not attend; or
(b)someone else contravened a direction or order of the court.
(3) A person who applies for an order for costs under this section must give a copy of the application to the party from whom the costs are sought.
Section 727 of the CYP Act provides:
Costs—how court may share costs
(1) This section applies if a court exercising jurisdiction under this Act has made an order about costs under section 725 or section 726.
(2) The court may order costs be paid by or shared between the parties in the way the court orders.
(3) However, if the Childrens Court makes an order for the payment of costs in a proceeding, the costs allowed are up to 50% of the costs that would be allowed if the proceeding had been heard in the Supreme Court.
Relevant to the reasoning below, the extract of the explanatory statement to what ultimately became these sections is as follows (emphasis added):
Part 19.6 — Costs
This part includes clauses about costs and re-enacts section 297 of the 1999 Act.
Clause 723 — Costs—parties bear own unless Court orders otherwise
This clause provides that parties to a proceeding under a care and protection chapter must bear their own costs unless a Court exercising jurisdiction under the Act orders otherwise. This re-enacts section 297(3) of the 1999 Act.
Clause 724 — Costs—frivolous, vexatious, dishonest application
This clause provides that costs may be ordered in a proceeding for frivolous, vexatious or dishonest applications or exceptional circumstances. This re-enacts section 297(4) of the 1999 Act.
Clause 725 — Costs—parties bear own costs unless order otherwise
This clause provides that a Court exercising jurisdiction under the Act may order costs if a hearing is adjourned because a person failed to attend when required or contravened a direction or order of the Court. This re-enacts section 297(7) of the 1999 Act.
Clause 726 — Costs—how Court may share costs
This clause allows a Court that has made an order under clauses 724 or 725 to order that costs may be paid or shared between the parties. This re-enacts section 297(6) of the 1999 Act.
The emphasised reference to the ‘1999 Act’ is a reference to the CYP Act’s predecessor, the Children and Young People Act 1999 (ACT) (1999 Act), s 297 of which is as follows:
Costs
(1) In this section—
courtmeans a court exercising jurisdiction under this Act.
(2) This section applies to a proceeding under this Part, including an interlocutory proceeding and an appeal from a decision made under this Part.
(3) Parties to a proceeding to which this section applies must bear their own costs unless a court orders otherwise.
(4)A court may order the payment of costs in relation to a proceeding to which this section applies if satisfied that—
(a)an application in relation to the proceeding is frivolous, vexatious or has not been made in good faith; or
(b)there are exceptional circumstances that justify such an order.
(5)Subject to subsection (6), a court may order costs be paid by, or apportioned between, the parties in such manner as the court orders.
(6) If the Childrens Court makes an order for the payment of costs in relation to a proceeding to which this section applies, the costs allowed are up to 50% of the costs that would be allowed if the proceeding had been heard in the Supreme Court.
(7) A court may award costs to someone if the hearing of a proceeding to which this section applies is adjourned because—
(a)someone else required to attend the hearing did not attend; or
(b)someone else contravened a direction or order of the court.
(8) A court may make an order for costs under this section on the application of a party to the proceeding or on its own initiative.
(9) An applicant must cause the application to be served on the party from whom the costs are sought.
It will be seen immediately that the structure of the 1999 Act is different from the present Act. The statutory provision that the parties ‘must’ bear their own costs, followed by the exceptions for the court to ‘otherwise’ order made it clear in the 1999 Act that the section was creating a regime for the awarding of costs. The explanatory memorandum discussing these sections of the 1999 Act is as follows:
This clause presumes that parties to care and protection proceedings will usually bear their own costs of the proceedings, but also allows for costs orders to be made: where a person fails to attend a hearing or comply with an order or direction of a court; in proceedings that are frivolous, vexatious or made in bad faith; or in exceptional circumstances. The Childrens Court may only make orders for costs at a rate of up to 50% of the Supreme Court scale.
The 1999 Act also contains two other critical points of difference in drafting from the CYP Act. The first is that the definition of ‘court’ in s 297(1) of the 1999 Act has been removed from s 724 of the CYP Act. Instead, the drafter has included the previous defining words ‘exercising jurisdiction under this Act’ after the word ‘court’ in each of the ss 724 to 727 of the CYP Act.
The second drafting change concerns the interaction of the rules of the court with the 1999 Act. Section 56 of the 1999 Act, as first enacted, provided:
Procedure of Childrens Court
(1)Except as expressly provided in this Act—
(a)the Magistrates Court Act 1930 , and the rules and regulations under that Act, apply to the Childrens Court in the exercise of its jurisdiction under section 54 (General jurisdiction of Childrens Court) in relation to a proceeding under Chapter 6 (Young offenders), other than section 128 (Special purpose leave); and
(b)the Magistrates Court (Civil Jurisdiction) Act 1982, and the regulations under that Act, apply to the Childrens Court in the exercise of its jurisdiction under section 54 in relation to any other proceeding under this Act.
(2)The regulations may make provision with respect to the procedure to be followed in proceedings in the court in the exercise of its jurisdiction under section 54.
Section 56 was later amended as part of the consequential amendments to various Acts establishing courts and tribunals upon the commencement of the Court Procedures Act. Section 56, as amended, provided:
Procedure of Childrens Court
(1)The Magistrates Court Act 1930 (other than chapter 4 (Civil proceedings)) applies to the Childrens Court in the exercise of its jurisdiction under section 54 (General jurisdiction of the Childrens Court) in relation to a proceeding under chapter 6 (Young offenders), other than section 128 (Special purpose leave).
(2)The rules under the Court Procedures Act 2004 applying in relation to civil proceedings in the Magistrates Court apply to the Childrens Court in the exercise of its jurisdiction under section 54 in relation to any other proceeding under this Act.
That is how the general application of the Rules came to apply in proceedings in the Children’s Court. The original words of s 56 of the 1999 Act, ‘except as expressly provided in this Act’ were removed.
The general application of the Rules was then replicated in s 889 of the CYP Act when it was first enacted, which provided for a series of amendments to other legislation, including the insertion of a new Pt 7A into the Court Procedures Act.
Section 69 of the Court Procedures Act, located in Pt 7A, provides (emphasis added):
Childrens Court procedure
(1) The Magistrates Court Act 1930, chapter 3 (Criminal proceedings), and the rules applying to criminal proceedings in the Magistrates Court, apply to the Childrens Court in relation to a criminal proceeding.
(2) The rules applying to civil proceedings in the Magistrates Court apply to the Childrens Court in relation to any other proceeding.
The explanatory statement to this section provides:
Section 69 re-states the existing law that the law of criminal proceedings in chapter 3 of the Magistrates Court Act 1930 and the relevant rules that would apply to the Magistrates Court also apply to the Childrens court. Likewise, the rules for civil proceedings used by the Magistrates Court apply to the Childrens Court.
Section 69 is not intended to be interpreted in a manner that excludes the creation of specific rules or practice directions for children and young people. It is envisaged that the rules committee authorised by the Court Procedures Act 2004 could make specific rules for proceedings involving children and young people.
These drafting changes have perhaps created or exacerbated the present ambiguity that requires resolution in the present appeal.
Consideration
General principles
The principles of statutory constructionto be applied are well established. The High Court in Federal Commissioner of Taxation v Unit Trend Services Pty Ltd [2013] HCA 16; 250 CLR 523 stated at [47]:
As French CJ, Hayne, Crennan, Bell and Gageler JJ said in Federal Commissioner of Taxation v Consolidated Media Holdings Ltd: 'This Court has stated on many occasions that the task of statutory constructionmust begin with a consideration of the [statutory] text'. Context and purpose are also important. In Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross French CJ and Hayne J said:
The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority, '[t]he primary object ofstatutory constructionis to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute' ... That is, statutory construction requires deciding what is the legal meaning of the relevant provision 'by reference to the language of the instrument viewed as a whole', and 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. (emphasis of French CJ and Hayne J) (Citations omitted)
To be added to this are the principles in ss 7(3), 138 and 139 of the Legislation Act 2001 (ACT) (Legislation Act), which require the Court in working out the meaning of the Act to take a purposive approach to issues of statutory interpretation.
The parties drew the Court’s attention to differences between the wording of s 15AA of the Acts Interpretation Act1901 (Cth) (Commonwealth Act), and s 139 of the Legislation Act. The language of the Commonwealth Act prefers a construction that would promote the purpose or object to one that does not, whereas the language of the Legislation Act is to favour an interpretation that would ‘best achieve’ the purpose of the provision.
In Casey v Alcock [2009] ACTCA 1; 3 ACTLR 1 (Casey), Besanko J (with whom Refshauge J agreed on this point) referred at [103] to the uncertainty in the authorities whether the difference in the words used in s 15AA of the Commonwealth Act and s 139 of the Legislation Act means that the sections have different effects, citing Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 at 262. See also Pearce DC and Geddes RS, Statutory Interpretation in Australia (8th ed, LexisNexis Butterworths, 2014) p 52 at [2.16].
Sections 138 and 139 of the Legislation Act may potentially be read together as assuming that a meaning that is compatible with the purpose is to be preferred even to a different meaning that is clear on the face of the provision in question.
That possibility was rejected by Besanko J in Casey at [100]-[101]. The Court of Appeal in Haureliuk v Furler [2012] ACTCA 11; 6 ACTLR 151 similarly referred to the distinction in the wording of the provisions at [20]-[21], stating that the important point is that the Court is not authorised to rewrite legislation.
Having considered the issue during the hearing, the parties all appeared to reach the general consensus that the nuances of the wording in s 139 of the Legislation Act do not have an impact on the outcome of this case. My finding below that there is ambiguity alleviates the need to consider whether a meaning that ‘best achieves’ the purpose of the Act would require the Court to depart from the unambiguous meaning the legislation would otherwise bear.
The text
The starting position is the words of s 724. If the words were simply that each party must bear their own costs (c.f. s 116 of the Child Protection Act 1999 (Qld)), it is unlikely that there could be any argument that there was any separate general discretion under the Rules permitting a court to depart from that position.
It is the words ‘unless a court exercising jurisdiction under this Act orders otherwise’ that create some ambiguity, in that an available construction is that the provision permits a residual general costs discretion, operating concurrently with ss 725 and 726 of the CYP Act, as submitted by the active respondents and found by the Chief Magistrate.
The words ‘exercising jurisdiction under this Act’ are neutral
The appellant placed significance on the words ‘exercising jurisdiction under this Act’, submitting that those words gave meaning to when a court could otherwise order. The meaning for which the appellant contended was that a relevant court could only exercise the power to award costs ‘under’ the CYP Act, and implicitly this removed the power to award costs ‘under’ the Rules.
I do not accept that submission for two reasons. First, it ignores s 69 of the Court Procedures Act, which expressly applies the Rules in cases in the Children’s Court, and does not produce a harmonious construction.
Second, having had regard to the drafting of the 1999 Act set out above and the context of the CYP Act as a whole, the words are neutral on the question of the power to award costs. The words give meaning to the word ‘court’ which precedes them, not the circumstances in which a court may otherwise order. The (simpler) drafting of s 297 of the 1999 Act makes that clear. Under the CYP Act, the Magistrates Court is to be known as the Children’s Court when making a decision to which the CYP Act applies. Further, Ch 17 of the CYP Act (one of the care and protection chapters), provides for care and protection proceedings to be transferred and dealt with by Children’s Courts in other states.
The reference to a ‘court exercising jurisdiction under this Act’ is no more than an attempt to capture the variety of judicial entities that may be dealing with care and protection orders under the CYP Act.
The words ‘orders otherwise’ do not create a power
Similarly, the phrase ‘unless a court…orders otherwise’ of itself is not determinative, or even instructive, as to the existence or scope of any discretionary power on costs.
In this regard, the first respondent relied on the decision of Penfold v Penfold (1980) 144 CLR 311 (Penfold). Proper consideration of that decision reveals that it has no real bearing on the construction issue in this case. If anything, it enforces the point that the words used in s 724 of the CYP Act do not of themselves create a separate discretionary power.
In Penfold, s 117 of the Family Law Act 1975 (Cth) was under consideration. That section was extracted in Penfold at 314 as follows:
Section 117(1) and (2) provide:
“(1) Subject to sub-section (2) and section 118, each party to proceedings under this Act shall bear his own costs.
(2) If the court is of opinion in a particular case that there are circumstances that justify it in doing so, the court may, subject to the regulations, make such orders as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court thinks just.”
As the majority confirmed in Penfold at 314, the sole source of the power to make an order for costs was sub-section 117(2) above, not sub-section (1) above. The test was whether the court was of the opinion that the circumstances justified it in doing so.
The present legislation is markedly different. Section 724(2) of the CYP Act does not include the empowering words ‘the court may’, which are found in s 117(2) of the Family Law Act 1975 (Cth). The reference to ‘unless a court… otherwise orders’ in s 724(2) merely refers to the fact that a court order will overcome the mandatory nature of the provision. It does not also create the power to ‘order otherwise’. Such power must be found elsewhere.
The decision relied upon by the first respondent, Oxenbould v The Solicitors’ Trust (No 2) [2011] TASSC 63 is illustrative of the same point. Under consideration was s 388(6) of the Legal Profession Act 2007 (Tas). It was in the following terms (emphasis added):
No order for costs is to be made on an appeal under this section unless the Supreme Court is satisfied that an order for costs should be made in the interests of justice.
At [4], Blow J extracted a passage from Hunter Development Brokerage Pty Ltd v Cessnock City Council (No 2) [2006] NSWCA 292; 68 NSWLR 177, where Basten JA, with whom Santow and Bryson JJA agreed, referred to three different types of statutory powers to make orders for costs. They are, in paraphrased summary:
(a)An unconstrained conferral of power without direction or limitation, where the primary and generally only relevant consideration is that the power is conferred to compensate the successful party against the expense to which the party has been put by reason of the legal proceedings.
(b)Those which expressly identify the principle that the power to award costs is intended to compensate or indemnify the successful party, by providing that ‘the court is to order that costs follow the event unless it appears to the court that some other order should be made.’
(c)Those which provide as a general rule that there shall be no order as to costs, with a discretionary power to depart from that rule in particular circumstances, including where the Court considers that it is fair and reasonable.
Blow J held at [5]:
The statutory power conferred by our s 388(6) is one that falls within his Honour’s third category. The subsection provides that, as a general rule, there is to be no order as to costs. It confers a discretionary power to depart from that rule in particular circumstances, namely when ‘the Supreme Court is satisfied that an order for costs should be made in the interests of justice’.
Again, the words of s 724 of the Act ‘unless the court… orders otherwise’ refer to a power (discretionary or otherwise) being exercised, but do not in terms confer such a power. The section is missing the empowering words such as ‘the court may order’, ‘if the court is satisfied’, ‘if the court is of the opinion’, or ‘unless the court considers that the making of a costs order is, in the circumstances of the particular case, fair and reasonable’.
The Chief Magistrate referred to W v Director-General, Community Services Directorate [2014] ACTSC 404 (W), where s 724 of the Act was considered as part of the obiter reasoning of Mossop AsJ (as his Honour then was), stating in [86]:
The terms of s 724(2) are not such as to indicate that the scope of the power under that subsection is limited to the circumstances in ss 725 and 726.
That statement appears to have been based on an interpretation that the Rules operated concurrently with the provisions of the CYP Act. His Honour referred to Penfold as being consistent with the position that a ‘clear case’ was not required before the Court would exercise its discretion on costs.
For the reasons that follow and those already given above, I respectfully disagree with that aspect of Mossop AsJ’s reasoning, noting that his Honour expressly refrained from analysing the significance of the existence and terms of the contextual provisions of ss 725 and 726 of the CYP Act, nor did his Honour have cause to conduct any detailed analysis of the interaction of the costs provisions with the Rules, given the ultimate finding made in W that there was no basis in that case to ‘order otherwise’.
Once that contextual analysis is undertaken (as set out below), it becomes clear that s 724(2) of the CYP Act is so limited.
The statutory context
Part 19.6 of the CYP Act
The relevant statutory context has been set out above. Sections 725(2) and 726(2) each contain the empowering words ‘a court…may’. They directly follow s 724 and the context is indicative of those sections specifying the circumstances where the relevant court will be permitted to ‘orders otherwise’.
Section 727 then addresses apportionment and the quantum that will be recoverable by reference to assessment: a maximum of 50% of what would have been ordered if the matter was heard in the Supreme Court. It may also be seen that ss 725 and 726 create requirements for service.
The inclusion of the procedures to be followed on the question of costs is indicative of a specific regime operating, and inconsistent with a construction that permits a residual general discretion on costs.
I accept the submission of the appellant that if the construction for which the active respondents contend were accepted, anomalies would arise. For example, the operation of a general discretion on costs means that the court could order that costs follow the event and such costs could be assessed on the basis provided for by the Rules. However, in cases of dishonesty, vexatious applications or behaviour disruptive to the court’s processes, recovery would be limited on assessment to that prescribed by s 727 of the CYP Act. That is not a logical distinction. Rather, the context favours Pt 19.6 being construed to create an exclusive regime on costs.
Further, the contextual provisions must be given work to do: Project Blue Sky.. If the regime set up under Pt 19.6 of the CYP Act was to be construed as still permitting a general discretion on costs to be exercised, there would be no need to include either section 725 or 726, as those circumstances are each covered by a general discretion on costs.
Mention has been made above of the different structure in the CYP Act, with the costs provisions being separated into consecutive sections, rather than being all part of the one section as drafted in the 1999 Act. The Children’s Representative emphasised s 725 of the Act as a ‘stand alone’ provision.
The link would perhaps have been clearer had the drafting retained the exceptions to the rule in s 724 of the CYP Act as part of the one section. However, the fact that they are the immediate context to s 724 is in my view sufficient. There is no indication in the CYP Act that this rearranged structure altered the meaning of the sections in some way. Such a conclusion is supported once regard is had to the extrinsic material, as part of discerning the overall intention or purpose of the provisions, discussed below.
Reconciling the regime under the CYP Act with the Rules
The CYP Act must be read as a whole (as is well established: see Metropolitan Gas Co v Federated Gas Employees’ Industrial Union (1924) 35 CLR 449 at 455). The greater context of the CYP Act includes the incorporation of the Rules, as set out above.
Section 69 of the Court Procedures Act may be characterised as a blanket application of the Rules. It is a general provision. Its effect is to include the application of the general costs discretion under r 1721 and assessment provisions such as r 1722. Accordingly, at first, such incorporation suggests that the court exercising jurisdiction under the CYP Act retains a wider discretion on costs than that set out in ss 725 and 726.
However, where there is an apparent conflict, the provisions of the statute (including rules applied by the statute) will not have concurrent operation. Here, there is a conflict in what the relevant court may order. The clear words of s 724 are that the parties must bear their own costs. However, r 1721 of the Rules permits a court, for example, to order that costs follow the event. Again, it is difficult to see what work the words in s 724 of the CYP Act do if the court retains a separate general unfettered discretion to override them.
Similarly, s 727 of the CYP Act provides that costs are to be assessed at 50% of what is payable in the Supreme Court. Rule 1722 of the Rules sets up a different regime based on the amount of the solicitor’s fees.
In Smith v R (1994) 181 CLR 338 at 348, the High Court stated:
It is but common sense that Parliament having before it two apparently conflicting sections at the same time cannot have intended the general provision to have deprived the specific provision of effect.
In such cases, the particular provision is given a legal meaning which impliedly excludes the operation of the general: Resolving Conflicts of Laws (supra) at 58-59, going on to articulate a number of principles in relevant cases, two of which are of assistance here. The first is Ombudsman v Laughton [2005] NSWCA 339; 64 NSWLR 114 at [19] per Spigelman CJ:
Where any conflict arises with the general words of another provision, the very generality of the words of which indicates that the legislature is not able to identify or even anticipate every circumstance in which it may apply, the legislature is taken not to have intended to impinge upon its own comprehensive regime of a specific character.
The second, to similar effect, is R v Wallis; Ex parte Employers Association of Wool Selling Brokers (1949) 78 CLR 529 at 550 per Dixon J:
If [the Act] confers a specific power with respect to a limited subject or specifies a manner of dealing with it or otherwise provides what the duty or authority of the arbitrator shall be, then upon ordinary principles of interpretation the provision in which that is done should be treated as the source of [the] authority over the matter, notwithstanding that otherwise the same or a wider power over the same matter might have been implied in or covered by the general authority given by [another section]. This accords with the general principles of interpretation embodied in the maxim expressum facit cessare tacitum and in the proposition that an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not be done according to some other course.
Applying these principles to the present case, the general application of the Rules cannot have been intended to deprive the specific costs provisions of effect by providing a concurrent wider power. The CYP Act confers a specific power to award costs through ss 725 and 726. Those powers import a negative, namely that when the circumstances specified do not exist, the power to award costs is not enlivened.
The conclusion must be drawn that the enactment of Pt 19.6 of the CYP Act impliedly excludes the operation of r 1721 when the proceedings involve the care and protection chapters. This adjustment of language, to my mind, achieves the result which best gives effect to the purposes and language of the provisions, while maintaining the unity of all the statutory provisions.
The purpose
The purpose of the provisions supports that construction. It is clearly to limit the circumstances in which costs will be ordered against or in favour of a party. That much is obvious from the initial words of s 724 that each party must pay their own costs. I accept that there is a protective element of the legislative purpose. Parents fighting to retain care of their children ought be able to do so reasonably without the risk of an adverse costs order.
The historical version of the legislation and the explanatory memorandum, set out above, also confirm that the purpose of the provisions was to limit the circumstances in which costs may be ordered. The explanatory memorandum to the 1999 Act evinces a clear intention that the specific costs provisions act as the exclusive regime for the relevant court’s discretion. When the CYP Act was enacted, the legislature expressly stated through the explanatory statement that it was re-enacting each of the provisions of the 1999 Act. That explanation runs contrary to any notion that by the drafting or structural changes to the provisions, Parliament intended to change their meaning.
A construction that excludes the operation of a general discretion as to costs promotes, and further, best achieves, the apparent purpose of the costs provisions.
The children’s representative submitted that it is inconceivable that Parliament could have intended for the sections of the CYP Act to ‘provide an overwhelming protection and in essence a stronger shield of the Crown to the Director-General at the expense of vulnerable litigants.’
However, that submission fails to appreciate that there is provision in s 725 for the court exercising the relevant jurisdiction to order costs in exceptional circumstances. That is a balancing measure, which the court has at its disposal and may utilise at its own initiative. Indeed, in the event that the construction issue was resolved in favour of the appellant, the first respondent relies on that limb of s 725 of the CYP Act, submitting that the facts of this case were ‘exceptional’.
Contrary to the submission of the children’s representative, I am of the view that a presumption that each party pays their own costs, with the very limited exceptions in ss 725 and 726 of the CYP Act, would in the majority of cases protect those who are vulnerable or without legal resources. A construction of the CYP Act that preserved a general costs discretion would allow the appellant to seek adverse costs orders every time he succeeded on an application. That outcome would not best achieve the protective purpose for which the children’s representative contended.
Judicial consideration of other statutory provisions
It will be apparent from the above that there is scant legal authority directly on the relevant sections of the CYP Act or its predecessor, the 1999 Act. The statutes in other Australian jurisdictions covering matters of care and protection are similarly of no assistance, because each has costs provisions that are substantially different from the wording of the CYP Act.
The parties were given an opportunity to file further written submissions on costs provisions in other statutory regimes that were similarly worded and had received judicial consideration, by way of further assistance to the Court, and I have read the diligent product of that opportunity. Ultimately, however, I can see that there is little to be gained from referring to other costs provisions because the question of statutory construction is uniquely bound to the particular statutory framework, including the purpose and history of the legislation in question.
With that caveat, one statutory framework in the ACT jurisdiction that may be of some relevance (referred to in the further submissions) appears to be the ACT Civil and Administrative Tribunal Act 2008 (ACT) (ACAT Act), s 48(1) of which provides:
The parties to an application must bear their own costs unless this Act otherwise provides or the tribunal otherwise orders.
The above wording is similar to that presently under consideration, in that parties ‘must’ bear their own costs ‘unless the tribunal otherwise orders’.
Section 48(2) of the ACAT Act then lists a number of circumstances where the tribunal ‘may order the other party to pay’ costs. These include, the filing fee and any other fee incurred if the tribunal decides an application in a party’s favour, if the tribunal considers that a party caused unreasonable delay, if a party contravenes an order of the tribunal, or if the proceedings involved an application for review under certain environmental and planning legislation.
Again, the subsequent listing of specific circumstances where costs may be ordered is similar to the structure of the CYP Act.
In CIC Australia Ltd v ACT Planning and Land Authority and Ors [2013] ACTSC 96; 277 FLR 26, Penfold J held (at [82]) that s 48(1) of the ACAT Act did not create a general discretion for the Tribunal to award costs. The section required an applicant for costs to demonstrate that its case fell within one of the circumstances set out in s 48(2).
I accept that the different statutory framework means that the judicial consideration of s 48(1) of the ACAT Act is not determinative of the question here. However, her Honour’s reasoning is consistent with the view that I have reached here, namely that s 724 similarly does not of itself create a general discretion to award costs, and serves to confirm my conclusion.
Conclusion
The appellant has established legal error in the court below. During the hearing the parties each made submissions in relation to whether the matter ought be remitted.
In the present case, the Chief Magistrate expressly did not make any finding that the circumstances were ‘exceptional’ so as to enliven the power under s 725 of the CYP Act. However, it may be that applying the construction of the legislation above, the same order would have been made, as submitted by the first respondent.
The Court has the power on the rehearing of an appeal of a decision made under the care and protection chapters to substitute its own decision, including drawing its own factual inferences: see ss 835 to 838 of the CYP Act, and ss 274(2) and 276 of the Magistrates Court Act1930 (ACT); see also JL v Director-General Community Services Directorate [2015] ACTSC 24, referred to by Murrell CJ in ES v The Director-General of the Community Services Directorate (No 2) [2016] ACTSC 7 at [34]-[35].
Initially I was minded to substitute a finding as to whether the discretion on costs ought be re-exercised because, understandably, the parties were anxious to avoid the incurrence of further legal costs when the sole issue for resolution is itself the legal costs of the proceedings below.
It would not be in the interests of justice to remit the proceedings if, applying a different construction of the CYP Act to the uncontroversial evidence or agreed facts, I considered the same order ought to have been made. It is hard not to feel a degree of sympathy towards a great-grandmother who takes on the considerable responsibilities of caring for a child, including emotional, mental, physical and financial investment, where the parents have not discharged those same responsibilities, and who then finds herself involved in costly litigation. The circumstances of the proceedings may well have been ‘exceptional’ so as to justify a costs order under the CYP Act.
Alternatively, if there was no dispute about the facts as fully found by the court below (and the weight given to them), the Court on appeal may have been in a position to dispose of the application rather than remit it.
The difficulty here is that the Chief Magistrate had the advantage of hearing and experiencing how the evidence unfolded and set out in the reasons the parts that were considered relevant or determinative based on a different, broader understanding of the discretion on costs. The application of a different statutory test may require other matters to be considered and weighed in the balance, so that this is not a case where the Court can simply rely on facts fully found. As to drawing my own inferences, the appellant abandoned other arguments about the exercise of the Chief Magistrate’s discretion being unjust, unreasonable or giving undue weight to particular evidence or circumstances. The parties were not heard on how the Court ought re-exercise the discretion, including matters of weight and relevant evidence on the question. In those circumstances, I do not consider it appropriate to embark upon a reconsideration of the evidence with a view to substituting a finding on the costs issue.
As canvassed with the parties at the hearing, remittal does not foreclose the appellant and the first respondent resolving the question of costs between themselves. The appellant submitted during the hearing that the key motivation in bringing this appeal was to clarify the position on the costs discretion under the CYP Act. In that sense, the appeal proceedings were imbued with a degree of public interest. Having achieved that objective may be sufficient to permit settlement of the issue in the present case, without further recourse to the courts. Alternatively, the parties may choose to proceed to have the question on remittal determined on the papers, in order to limit the legal costs going forward.
Costs of the appeal
The appellant has been successful and ordinarily would be entitled to costs of the appeal. However, it can be seen from the words of s 724 that my construction of Pt 19.6 will also affect the Court’s power to award costs on this appeal. This is because s 724 expressly covers any appeal from a decision made under ‘the care and protection chapters’. The decision on costs made by the Chief Magistrate was such a decision because s 336 of the CYP Act defines ‘care and protection chapters’ to include Ch 19, where s 724 is located.
No party suggested that on appeal any of the matters listed in s 725 of the CYP Act might apply. Accordingly, the parties must bear their own costs.
Orders
The orders of the Court are as follows:
1. The appeal is allowed.
2. The order of the Childrens Court made on 5 June 2017 is set aside.
3. The matter is remitted to the Childrens Court for further determination according to law.
| I certify that the preceding one hundred and five [105] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam Associate: Date: 30 January 2018 |
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