Purcell v R M

[2004] VSC 78

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
PRACTICE COURT

No.  4134 of 2004

IN THE MATTER of an appeal pursuant to s 80B of the Children and Young Persons Act 1989

BETWEEN

MYRENE PURCELL (as Delegate of the Secretary of the Department of Human Services)	Appellant
and
R.M. & Ors	Respondents

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JUDGE:	GILLARD J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 January 2004
DATE OF JUDGMENT:	12 January 2004
CASE MAY BE CITED AS:	Purcell v R.M. & Ors
MEDIUM NEUTRAL CITATION:	[2004] VSC 78

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Costs to party in person – Party, a witness – Loss of wages allowed

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms L Bazzani	Department of Human Services – Court Advocacy Unit
For the Respondents	Dr I Freckelton (for mother) Mr G Martin (for paternal grandmother) Ms S Buchanan (for child A) Ms D Preston (for Police) Mr X (in person – father of child A)	Victoria Legal Aid

HIS HONOUR:

REASONS FOR COSTS

1. In this appeal, I allowed the appeal but only for the purpose of clarifying some of the conditions which the Magistrate had imposed and adding another condition which would facilitate a certain procedure if the mother was to breach a condition.  The reality was that the appeal failed.  In considering applications by the represented respondents I proceeded on the basis that they had been successful. 

1. Mr X is the father of one of the children, A. It was necessary to serve a copy of the application upon him. By reason of s 18(1)(c)(ii) of the Children and Young Persons Act 1989, he became a party to the proceeding and is entitled to participate fully in the appeal. He attended before the learned Magistrate on 8 January and appeared on the appeal. He sought and was given permission to address the Court.

1. As appears from my reasons for judgment, the procedures adopted in the Children's Court on an application for an interim accommodation order and on appeal are unusual and not in keeping with the normal Court procedures and principles of evidence.  It is said that the informal nature of presenting evidence to the Court is authorised by s 82(1)(d) of the Act.  It is a procedure that has been followed for many years. 

1. The procedure involves assertions of fact being made from the Bar table and the making of submissions together with any sworn evidence that may be placed before the Children's Court or on appeal.  I gather that it is rare to place any sworn evidence before the Children's Court.

1. Mr X applied for costs of his attendance on the appeal.  He asserted that he lost $150 wages as a result of attending the appeal on 9 January.  I did not rule on whether he was entitled to his expenses because I had some doubt whether I had the jurisdiction to do so.  In expressing that doubt, I had in mind the decision of Kowal v Zoccoli.[1]  The Court of Appeal held that a party was not entitled to compensation for loss of income.  However it was recognised in that case that a party was entitled to witness' expenses.  The High Court said in Cachia v Hanes[2] -

"Of course a litigant who qualifies as a witness is entitled to the ordinary witness's fees."

The law permits a party who is a necessary witness to be allowed his loss of time in the same way as a witness who is not a party.  See Harbin v Gordon[3] and McCoughtry v Schrick.[4]

[1](2002) 4 VR 399.

[2](1994) 179 CLR 403.

[3][1914] 2 KB 577 at 586.

[4][1947] VLR 342.

1. On the appeal Mr X was not only a party but was also a witness.  He addressed the Court and asserted a number of factual matters concerning the mother.  In accordance with the procedures obviously adopted in the Children's Court which in my view are appropriate in this Court, he was a party who gave evidence as a witness.  It follows that he is entitled to his loss of income for attending Court on Friday. 

1. Accordingly I add to paragraph 5 of the orders I pronounced on 9 January 2004 the following –

"And the witness's expenses of the party Mr X fixed at $150.”