Joy Alleyne as independent legal representative for LC v Director General Department of Community Services (No 2)

[2009] NSWDC 171

CITATION:	Joy Alleyne as independent legal representative for LC v Director General Department of Community Services (No 2) [2009] NSWDC 171
HEARING DATE(S):	16 June 2009
JUDGMENT DATE:	22 July 2009
JURISDICTION:	Civil
JUDGMENT OF:	Goldring DCJ
DECISION:	Applications for costs by both the appellant and the mother are refused
CATCHWORDS:	CHILDREN AND YOUNG PERSONS - Appeals from Children's Court - Costs - what constitutes 'exceptional circumstances'
LEGISLATION CITED:	Children and Young Persons (Care and Protection) Act 1998
CASES CITED:	SP v Department of Community Services [2006] NSWDC 168 BS Minister for Community Services (No 1339/2008, unreported, 5, 6, 26 August 2008) Department of Community Services v SM and MM [2008] NSWDC 68
PARTIES:	Joy Alleyne as independent legal representative for LC (Appellant/Applicant) Director General Department of Community Services (First Defendant/Respondent) The Minister for Community Services (Second Defendant/Respondent) JR (Third Defendant/Applicant)
FILE NUMBER(S):	4829 of 2008
COUNSEL:	J Alleyne, solicitor (Appellant/Applicant) P Guterres, solicitor advocate (First and Second Defendant/Respondent) D J Chapman, solicitor (Third Defendant/Applicant)
SOLICITORS:	Alleyne & Co Solicitors, Woy Woy I V Knight, Crown Solicitor D J Chapman Solicitors, Gosford

JUDGMENT

1 HIS HONOUR: In this matter, Mr Chapman, who appears for the mother of the appellant, seeks an order for the payment of his costs. The appellant has also lodged a submission in which she seeks payment of costs.

2 In SP v Department of Community Services [2006] NSWDC 168, Rein J, and in BS v Minister for Community Services, (No 1339/2008, unreported, 5, 6 and 26 August 2008) Robison J had to deal with similar applications.

3 The Children and Young Persons (Care and Protection Act) provides as follows:

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

4 In this case the original application for variation of an order made by the Children's Court was made by the mother of the appellant. However, the appeal was brought in the name of the child, not of the mother.

5 In SP, Rein J made the following comments:

"29 Mr Saidi [for the Department] 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, particularly having regard to any other aspects of the legislation which may throw light on the legislative purpose. . .

36 The following matters are, I think, the types of matters which would or at least arguably might fall within the description of exceptional circumstances for the purposes of s 88 of the Act:

1) Deliberate misleading of the court or opponents.
2) Other misconduct or wrongful conduct.
3) Contumelious disregard of orders of the court or the principles set out in s 93 of the Act.
4) The raising of baseless allegations for which the party had no reasonable belief as to their existence.
5) The raising of false issues that bear no relation to the facts or are contrary to clearly established case law.
6) Maintenance of proceedings solely for an ulterior motive or the undue prolongation of a case by groundless contentions.
7) Gross negligence in the conduct of a case at least where that has led to an extensive waste of the court’s time and that of other parties.
8) Where the proceedings involve a blatant abuse of process and are both mischievous and misconceived."

6 These comments were approved and applied by Garling J in Department of Community Services v SM and MM [2008] NSWDC 68 and by Robison J in BS.

7 The grounds for the application for costs are as follows:

“(1.) The mother’s application had merit and met the change in circumstances requirement.
(2.) The Department erred in opposing the application of the mother, causing great inconvenience to the young person. Without this application the mother would not have had the opportunity of procedural fairness.
(3.) The Department had access to considerable funding.
(4.) The Appellant was not legally aided and, in fact, was represented pro bono.
(5.) There were grounds for leave to be granted due to the change in the mother's circumstances.
(6.) The proceedings related to a young person who is aged 15 and 7 months.
(7.) The Department failed to give due recognition to Section 90 (2A) (b) being the age of the child.”

8 Mr Chapman also points to a number of factual issues, which, in his submission, make the case "exceptional". They are matters of fact and the ways in which the learned magistrate dealt with evidence, particularly the opinion of Ms Carney, a psychologist. In my view, those factual matters are the type of matters which are likely to arise in any case in which the decision of a lower court is challenged on appeal. They are not, in my opinion "exceptional".

9 In this case, the appellant was not legally aided, and I am told by Mr Chapman that the mother was also not assisted by the Legal Aid Commission.

10 I could not say that any matters of the type described by Rein J arose in this appeal. There was certainly no allegation of misconduct on the part of the Department, nor, in my view, could it be said that there was no merit in the Department's case. There was some expert evidence to support the Department’s case, though there was also expert evidence to the contrary. The real basis of the appeal was that the learned magistrate in the Children's Court took a wrong view of the facts and expert evidence in relation to whether the mother's circumstances had changed since the making of the original order. After considering the evidence I determined that the learned magistrate had, in fact, taken a wrong view. That would be the ordinary nature of an appeal of this type. There is nothing exceptional about it.

11 I do not regard the matters set out by Rein J in SP as an exhaustive statement of what might constitute "exceptional circumstances" for the purposes of s 88, though they give a clear indication of some matters that may constitute such circumstances. BS also indicates matters of a different type, which may give rise to such circumstances. It may be that, in some circumstances, the financial position of a party may give rise to a finding of "exceptional circumstances". It may be that the factual situation is so complex, or the Department had taken such an unreasonable position, as Robison J found in BS v Minister for Community Services, that either would make for exceptional circumstances. The facts of this case do not.

12 While it follows, from the decision I made on the appeal, that I take the view the Department should not have opposed the appeal, I cannot say, on the evidence, that it had no basis for doing so. The report of the Court appointed clinician, which was before the learned Magistrate, contained matters which the Department considered, in my view reasonably, to warrant opposition to the application. Indeed, if the Department had not drawn the attention of the Court to the matters contained in the report of the clinician, Dr Lennings, it might have been open to justifiable criticism.

13 In this case, while I have considerable sympathy for the applicants, I cannot find that there are exceptional circumstances, which would justify the making of an order for costs. I am not satisfied that the circumstances are sufficiently exceptional to bring the application within the types of matters contemplated by s 88.

14 The applications for costs by both the appellant and the mother are therefore refused.

**********