Re David, Alan and Mary and the Director General Family and Community Services (No. 2)

[2014] NSWSC 1957

Supreme Court

New South Wales

Medium Neutral Citation:	Re David, Alan and Mary and the Director General Family and Community Services (No. 2) [2014] NSWSC 1957
Hearing dates:	19 September 2014
Date of orders:	03 November 2014
Decision date:	03 November 2014
Jurisdiction:	Equity Division
Before:	Slattery J
Decision:	See paragraph [16].
Catchwords:	COSTS - exception to the general rule that costs follow the event - multiple issues - plaintiff substantially successful on issue of confidentiality – whether costs should be apportioned.
Legislation Cited:	Crimes Act 1900 (NSW), s 316 Evidence Act 1995, ss 126B, 126F, 138, 128 Uniform Civil Procedure Rules 2005, r 42.1
Cases Cited:	A v Hayden (No. 2) (1984) 156 CLR 532 Bostik Australia Pty Ltd v Liddiard (No. 2)[2009] NSWCA 304 CSR Limited v Eddy (2005) 80 ALJR 59 Davies v Eli Lilly & Co (1987) 1 WLR 1136 James v Surf Road Nominees Pty Ltd (No. 2) [2005] NSWCA 296 Latoudis v Casey (1990) 170 CLR 534 Oshlack v Richmond River Council (1998) 193 CLR 72 Re Allen [2008] NSWSC 379 Re David, Alan and Mary and the Director General, Family and Community Services [2013] NSWSC 1319 Re David, Alan and Mary and the Director General, Family and Community Services [2014] NSWSC 1077 Re Georgia and Luke [2008] NSWSC 1277 Re Kerry (No. 2) [2012] NSWCA 194 South-West Forest Defence Foundation Inc v Executive Director of Department of Conservation and Land Management (No. 2) (1998) 154 ALR 411
Category:	Costs
Parties:	Plaintiff: (Aunt) [not published] First Defendant: Director General, Family and Community Services Second Defendant: (Mother) [not published] Third Defendant: (Father) [not published] Fourth Defendant: Independent Children’s Lawyer Ananda Hall Fifth Defendant: Children’s Court NSW (Bidura) Sixth Defendant: (Grandmother) [not published]
Representation:	Counsel: Plaintiff: M. W. Anderson First Defendant: K.J. Edwards Second Defendant: n/a. Third Defendant: S. M. Leis Fourth Defendant: R. Francois Fifth Defendant: n/a. Sixth Defendant: n/a. Solicitor: Plaintiff: Merridy S Gordon, Pearson Family Lawyers First Defendant: Ian Linwood, NSW Crown Solicitor's Office Second Defendant: Laurie Robertson, Robertson Solicitors, Children’s Law Chambers Third Defendant: Mark Whelan, Mark Whelan Lawyer Pty Limited, Children’s Law Chambers Fourth Defendant: Ananda Hall, Independent Children’s Lawyer, Legal Aid Commission of New South Wales Fifth Defendant: n/a. Sixth Defendant: n/a.
File Number(s):	2013/267442
Publication restriction:	Yes. As per Order 3 made by Bergin CJ in Eq on 3 September 2013:“No publication of the names of the plaintiff, the second, third and sixth defendants”.

Judgment

1. This is the Court’s second judgment in these proceedings. In the Court’s first judgment the Court declined to make permanent the injunction which the plaintiff sought: Re David, Alan and Mary and the Director General, Family and Community Services [2014] NSWSC 1077 (“the principal judgment”). But the Court continued the existing interlocutory injunction until the proceedings were finalised, including after the resolution of costs issues. This judgment should be read with the principal judgment and persons, events and things are referred to in both judgments in the same way.

2. This second judgment deals with the issue of costs, on which the contest is that the plaintiff seeks there be no order as to costs and the defendant seeks that costs follow the event. Costs argument was heard on 19 September 2014 and the parties were given a further opportunity to put on written submissions which they did on 3 October 2014.

3. In general terms the defendant, the Department submits that it was successful and sought costs on the basis of the ordinary rule that costs should follow the event: Uniform Civil Procedure Rules 2005 (“UCPR”), r 42.1. The defendants submitted that there was no special reason particular to this case which justified a departure from the ordinary rule. The burden of the argument really fell to the plaintiff who sought to show there was reason to depart from the ordinary rule Latoudis v Casey (1990) 170 CLR 534. Each of the ways that the plaintiff says that the ordinary rule should be displaced are now dealt with below.

4. The plaintiff’s first submission was that this was really a matter in the nature of a “test case” where, as for example in CSR Limited v Eddy (2005) 80 ALJR 59 at [78] to [81], the appellant was a recurrent litigant who sought to vindicate its long term interests by prosecuting the appeal whereas the plaintiff had no interest in the legal position beyond that particular litigation.

5. In such cases special costs orders may be made. But that does not seem to me to be this case. The plaintiff prosecuted this action, as the correspondence shows over the opposition of the defendant who said the law was clear in the matter. The Court ultimately found that it was. Whatever the advantages or disadvantages to the Department might have been by reason of the Court’s decision in this action it was not litigation that the Department sought. Moreover on the plaintiff’s side she could not show that there was a particular class of persons who would be benefitted by her action.

6. Invoking decisions such as Davies v Eli Lilly & Co (1987) 1 WLR 1136 the plaintiff also submits that the Court might treat the resolution of this matter within a wider conception of the test case as being representative of significant issues which arise in this jurisdiction, this being the first decision concerning those issues in this jurisdiction. This argument really founders upon the problem the principal judgment is really an application of well-established law, applying as it did the High Court’s decision in A v Hayden (No. 2) (1984) 156 CLR 532.

7. The plaintiff also argued that the discretion the Court was to exercise as to costs, could be exercised in a manner consistent with the way that it has been exercised in cases involving the Courts’ parens patriae jurisdiction, where the Supreme Court’s jurisdiction has been invoked in relation to matters before the Children’s Court: Re Georgia and Luke [2008] NSWSC 1277 per McCallum J and Re Allen [2008] NSWSC 379 per Gzell J.

8. It is true that in those cases the Court decided there should be no order as to costs on the basis it was in the best interests of the children not to burden their parents with an obligation to pay costs. But Barrett JA has explained those cases as being based on particular situations where proceedings before the Children’s Court are undetermined and the exercise of discretion not to make an order for costs flowed from an assessment that it would not be in the best interests of the children to burden the parents with an obligation to pay costs before those proceedings were resolved: Re Kerry (No. 2) [2012] NSWCA 194. As Barrett JA explained the result can be different if the Children’s Court proceedings are concluded:

“18   In each of those cases, the ultimate fate of the child (or children) was undetermined and the overriding question of the best interests of the child (or children) had not been addressed. The particular proceeding was, in effect, an early step along the way to some final resolution of the question of the best outcome for the child (or children). For that reason, the court was understandably conscious of the inhibitions that a costs order against the parents might place in the way of the emergence of a just result.

19   Here, by contrast, the question of the best interests of the child was determined by the Children's Court and that determination was confirmed upon appeal to the District Court, the decision of which remains undisturbed by a decision of the Supreme Court upon an application for prerogative relief. The merits of the situation were exhaustively examined, according to applicable criteria, at three levels of judicial decision-making. A final result emerged. The consideration that made it inappropriate for a costs order to be made in the two cases mentioned does not operate here.”

9. But this case is far more like Re Kerry (No. 2) than it is like Re Georgia and Luke or Re Allen. Here, as in Re Kerry (No. 2), the proceedings in the Children’s Court are concluded. The plaintiff was successful in the Children’s Court and care orders have been made in that Court in her favour. The situation here is very similar to that described by Barrett JA in Re Kerry (No. 2) at [12] where his Honour said:

“By acting as plaintiffs to invoke the supervisory jurisdiction of the Supreme Court under s 69 of the Supreme Court Act 1970, the costs respondents chose to enter an arena in which specific rules as to costs apply; and the Supreme Court should apply those rules without regard to principles that operate in relation to proceedings of other kinds.”

10. The plaintiff also argued that these proceedings could be characterised as a representative action on behalf of the larger group of persons other than the plaintiff. But the proceedings were not commenced in compliance with the UCPR requirements for representative actions. Nor can it really be said that this is a case in which costs should follow the event such as in circumstances where the unsuccessful party brought the proceedings in the public interest: see for example Oshlack v Richmond River Council (1998) 193 CLR 72. But merely because a person brings proceedings claiming a public interest that does not mean that any costs regime will apply to exempt the individual from the general rule: South-West Forest Defence Foundation Inc v Executive Director of Department of Conservation and Land Management (No. 2) (1998) 154 ALR 411. Moreover, it is difficult to see how public interest considerations arise in a case such as this, which is really an application of established principle.

11. The plaintiff has adduced evidence about her personal financial circumstances and the effect that a full costs order might have upon her future capacity to care for the children the subject of these proceedings. The correctness of the plaintiff’s evidence on this subject is not in issue. But the difficulty is that the plaintiff’s potential hardship and that which might arise indirectly for the children the subject of these proceedings is not a matter which can be taken into account in the exercise of the cost discretion. It may perhaps be able to be taken into account at a later point of time, if applications are made in relation to the timing of the enforcement of these costs orders.

12. A further issue emerged in the course of argument: as to whether there might be a separate issue in this case in relation to the contest as to confidentiality assurances on which the plaintiff was substantially unsuccessful as a matter of fact despite her being unsuccessful overall. The law on this is not in dispute. The Court may depart from the general rule that costs follow the event if the application of that costs rule may involve hardship where a party succeeds on some issues yet fails on others: James v Surf Road Nominees Pty Ltd (No. 2) [2005] NSWCA 296 at [32]. Separating out issues to be dealt with in this way is governed by a number of principles: the separate group of issues must be clearly dominant or separable; an issue does not need to be a precise issue in terms of pleading but may be a disputed question of fact or law; and the wide discretionary powers of the Court are still exercised in light of all the circumstances of the case: Bostik Australia Pty Ltd v Liddiard (No. 2)[2009] NSWCA 304 at [38].

13. In argument on the issue the Department submitted that it was unnecessary to call any evidence in relation to whether there had in fact been an assurance of confidentiality because it was a mandatory obligation to report disclosures of serious criminal offences under Crimes Act, s 316 which would supersede any assurance. The Department also argues in the circumstances that it was not unreasonable or improper to contest the issue of confidentiality once it was fielded.

14. Citing [108] of the principal judgment the Department argues that in light of the decision in A v Hayden (No. 2) (1984) 156 CLR 532 the Court was bound to conclude that any assurance of confidentiality by the Department could not be enforced in circumstances where the Department proposed to report a serious criminal offence and therefore the only real contested issue in the case was the legal one of whether there was an enforceable equitable obligation of confidence that would provide the basis for the grant of an injunction in equity.

15. The problem with this submission is that that was certainly not clear at the stage that the matter was set down for hearing. A number of other issues were raised and without some factual evidnce there would have been no substratum upon which the equitable obligations were ultimately determined. It is not necessary for the separate issue to be legally a separate issue. In my view significant time was occupied by this question and it is appropriate to discount the costs awarded to the Department by 25 per cent.

16. The order of the Court will therefore be that the plaintiff is ordered to pay 75 per cent of the Department’s costs of these proceedings from 27 August 2013. I direct the parties to bring in short minutes of order to give effect to these reasons.

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Decision last updated: 24 March 2015