KB v Burrun Dalai Corporation Inc (Costs)

[2025] NSWSC 252

Supreme Court

New South Wales

Medium Neutral Citation:

KB v Burrun Dalai Corporation Inc (Costs) [2025] NSWSC 252

Hearing dates:

On the papers

Date of orders:

25 March 2025

Decision date:

25 March 2025

Jurisdiction:

Equity

Before:

Hammerschlag CJ in Eq

Decision:

Plaintiffs to pay first defendant’s costs.

Catchwords:

COSTS – Whether costs should be ordered against plaintiffs seeking to invoke the Court’s parens patriae jurisdiction – HELD: Plaintiffs ordered to pay first defendant’s costs

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW) r 42.1

Cases Cited:

CAC v Secretary, Department of Family and Community Services [2015] NSWSC 344

CCR v PS (No 2) (1986) 6 NSWLR 622

KB v Burrun Dalai Corporation Inc [2025] NSWSC 103

Oshlack v Richmond City Council (1998) 193 CLR 72

Re Kerry (No 2) (Costs) [2012] NSWCA 194

Re Paul (No 2) [2024] NSWSC 106

Secretary, Department of Health and Community Services v JWB (Marion’s Case) (1992) 175 CLR 218

Category:

Costs

Parties:

KB (First Plaintiff)
LM (Second Plaintiff)
Burrun Dalai Corporation Inc (First Defendant)
Secretary, Department of Communities and Justice (Second Defendant)
Office of the Children’s Guardian (Third Defendant)

Representation:

Counsel:
B Prentice-Davidson (First Defendant)

Solicitors:
First Plaintiff (self-represented)
Second Plaintiff (self-represented)
Riverside Legal (First Defendant)
Crown Solicitors Office (Second and Third Defendants)
Legal Aid NSW (Children’s Independent Legal Representative)

File Number(s):

2025/00005413

Publication restriction:

Pursuant to an order made on 10 January 2025, there is to be no publication of the name of, or any information that would identify the plaintiffs, the subject children, and any other children who are under the parental responsibility of the Minister for Families and Communities until 14 August 2040.

This order operates throughout the Commonwealth of Australia.

JUDGMENT

1. I delivered the principal judgment in this matter on 25 February 2025, dismissing the Summons – KB v Burrun Dalai Corporation Inc [2025] NSWSC 103. All that remains is the question of costs.

2. The first defendant (Burrun Dalai) seeks its costs, relying on Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 42.1, which provides:

42.1   General rule that costs follow the event

Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs.

3. It argues that there is no basis to displace the presumption in the rule because:

1. the proceedings did not ultimately raise any issue of public interest;

2. the plaintiffs were not effectively forced to commence litigation against the defendants;

3. the plaintiffs conducted the proceedings in an unreasonable manner; and

4. Burrun Dalai has had to incur unnecessary costs when the Summons was doomed to fail from the outset.

4. The plaintiffs argue not only that costs should not follow the event (or that each party pay their own) but that the defendants should pay their costs. They criticise the manner in which the defendants have conducted themselves both before NCAT and in this Court, restating their complaint that the defendants acted in retaliation. They say that they made an offer to the defendants to work cooperatively and that the defendants did not attempt to strike out the Summons or make any claim for costs. They point out that the defendants did not comply with time limits. They make the point that they could not afford legal fees due to the actions of the defendants in cancelling their Working with Children Checks and that they have incurred filing fees, disbursements and out of pocket expenses exceeding $8,000. They argue that it is difficult to ascertain who was actually successful in the proceedings, whether nominally or otherwise.

5. Despite the fact that these are proceedings in the protective jurisdiction of the Court, UCPR r 42.1 applies. It makes no express exception taking this type of proceeding outside the ambit of the rule. Costs remain in the full discretion of the Court. The kinds of circumstances under which the presumption in the rule might be displaced are no doubt infinite. In protective matters one might anticipate the regular presence of circumstances warranting departing from the rule. This has prompted the idea that in such cases it is permissible to proceed on the basis that it is generally necessary and appropriate to ask what, in all the circumstances, is the proper order to make in relation to costs (see CCR v PS (No 2) (1986) 6 NSWLR 622 at 640 (Powell J); Re Paul (No 2) [2024] NSWSC 106 at [9] (Lindsay J)).

6. In CAC v Secretary, Department of Family and Community Services [2015] NSWSC 344 (citing Secretary, Department of Health and Community Services v JWB (Marion’s Case) (1992) 175 CLR 218), Lindsay J observed at [16]:

This question gives due recognition to the following factors, amongst others:

1. The protective jurisdiction of the Court is generally governed by the “welfare principle” (that the welfare and interests of each person in need of protection, here the plaintiff’s children, are the paramount consideration) and an associated concern to ensure that whatever is done, or not done, is done in the interests, and for the benefit, of the particular person in need of protection.

2. The Court needs to be alive to the possibility that private individuals who would otherwise be concerned to act to protect a person in need of protection might be deterred from acting if bound to submit to a costs order on an unsuccessful application made by them to the Court, even though reasonably made: CCR v PS (No 2) (1986) 6 NSWLR 622 at 640F. Cf, Wilson v Department of Human Services; Re Anna (No 2) [2011] NSWSC 545 at [95]-[108].

3. Taking into account the best interests of children the subject of proceedings, the Court needs to hasten slowly in burdening a parent with an obligation to pay costs, particularly in circumstances in which a final outcome for the children in Children’s Court proceedings remains undetermined: Re Kerry (No 2) - Costs [2012] NSWCA 194 at [12] and [17]-[18].

4. Proceedings relating to the welfare of children, or any other person in need of protection, are not adversarial in the sense encountered in ordinary civil litigation but, rather, are attended by a strong, special public interest element.

7. However, as Barrett JA observed in Re Kerry (No 2) (Costs) [2012] NSWCA 194 at [13]:

it may readily be accepted that the proceedings were concerned with the safety, welfare and wellbeing of the Child. In that respect, it may be appropriate to regard the contest as having had some public interest aspect to it. But even if that is so, the public interest aspect does not, of itself, warrant departure from the usual rule that costs follow the event.

8. His Honour referred to what was said by McHugh J in Oshlack v Richmond City Council (1998) 193 CLR 72, [1998] HCA 11 at [90] and [92], which is worthy of repeating here (footnotes omitted):

The possibility of adverse costs orders may well inhibit some individuals and groups from bringing cases to court which involve challenges to aspects of public law. Express recognition of this fact does not, however, mean that the courts should remove this inhibition by adopting a practice of declining to follow the usual order as to costs in cases of “public interest litigation”. Whether or not one regards a particular applicant’s actions as well-intentioned and striving, albeit unsuccessfully, to serve some perceived public interest, the respondent still faces real costs from having to defend the proceedings successfully. The applicant had a choice as to whether or not to be a party to the relevant litigation. The respondent typically had no such choice. The legislature has chosen not to protect such applicants from the effects of adverse costs orders, whether by an express statutory exemption or the creation of some form of applicants’ costs fund. In such circumstances, one may well feel some sympathy for the plight of the unsuccessful applicant. But sympathy is not a legitimate basis to deprive a successful party of his or her costs.

…

Nor is the status of the respondent as a public authority presently relevant. The law judges persons by their conduct not their identity. In the exercise of the costs discretion, all persons are entitled to be treated equally and in accordance with traditional principle. The fact that a successful respondent is a public authority should not make a court less inclined to award costs in its favour. Gone are the days when one could sensibly speak of a public authority having “available to them almost unlimited public funds.” Moreover, if costs awards are not made in favour of successful respondents such as the Council, the public services which those authorities provide must be adversely affected. Every irrecoverable dollar spent on litigation is one dollar less to spend on the services that public authorities do and ought to provide. Often enough the services that will be reduced will be those that favour the politically weak — children, the unemployed, the disabled and the aged. Such results cannot be in the public interest.

9. This is not a no costs jurisdiction.

10. It seems to me that the formulation of the proper approach as “what in all the circumstances is appropriate” is an articulation of the requirement for the Court to be satisfied that there is good reason to depart from the rule in the context of protective matters because such circumstances may well be present in parens patriae matters for the reasons articulated by Lindsay J.

11. The plaintiffs were entirely unsuccessful.

12. The proceedings failed both because of the pendency of the NCAT proceedings (as defined in the principal judgment) and also because the invocation of the parens patriae jurisdiction was neither necessary nor appropriate for the protection of the children. Indeed, to have granted the relief sought had the potential to expose them to an unacceptable risk of sexual abuse. I do take into account that a final outcome in NCAT remains undetermined but in the interim, relief was not justified.

13. I detected no conduct of the proceedings on the part of the defendants which would warrant any departure from the rule.

14. In all the circumstances, the plaintiffs should pay Burrun Dalai’s costs.

15. The plaintiffs are to pay the first defendant’s costs as agreed or assessed.

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Decision last updated: 25 March 2025