Re Kerry (No 2)

Case [2012] NSWCA 194

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Re Kerry (No 2) - Costs [2012] NSWCA 194
Hearing dates:On the papers
Decision date: 28 June 2012
Before: Barrett JA (at [1]), Tobias AJA (at [21]), Schmidt J (at [22])
Decision:

The Court orders that the first and second plaintiffs pay the first and second defendants' costs of the prerogative relief proceedings in this Court from 18 November 2011 to date and the Court notes that:

(a)the summons was filed in these proceedings by the first plaintiff on 18 November 2011; and

(b)the costs of the District Court proceedings before Balla DCJ are not included in the order.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: COSTS - departing from the general rule - care proceedings in respect of child - application for prerogative relief in respect of a decision of the District Court upon appeal from the Children's Court - application made by mother and grandmother defended by Director-General of Family and Community Services - application unsuccessful - respondent seeks costs - whether any special factor warrants departure from the general rule
Legislation Cited: Children and Young Persons (Care and Protection) Act 1998, ss 88, 91
Civil Procedure Act 2005, s 98
Supreme Court Act 1970, s 69
Uniform Civil Procedure Rules 2005, rule 42.1
Cases Cited: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Re Alan [2008] NSWSC 379; (2008) 71 NSWLR 573
Re Georgia and Luke [2008] NSWSC 1277
Re Kerry (No 2) [2012] NSWCA 127
Wilson v Department of Human Services; re Anna (No 2) [2011] NSWSC 545
Category:Costs
Parties: Grandmother - first plaintiff
Mother - second plaintiff
Minister for Family and Community Services - first defendant
Director-General of the Department of Family and Community Services - second defendant
District Court of New South Wales - Third defendant
Aunt - fourth defendant
Father - fifth defendant
Child - sixth defendant
Representation: Mr P R Glissan - first plaintiff
In person - second plaintiff
Ms M T England - first and second defendants
In person - first plaintiff
In person - second plaintiff
I V Knight, Crown Solicitor - first and second defendants
File Number(s):2012/117463

Judgment

  1. BARRETT JA: In accordance with directions made on 9 May 2012 (see Re Kerry (No 2) [2012] NSWCA 127 at [85], items 2 to 4), the first defendant (the Minister) and the second defendant (the Director-General) have given notice of a claim for an order that the first plaintiff (the Grandmother) and the second plaintiff (the Mother) pay the costs of the Minister and the Director-General of the…

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AGLC
Re Kerry (No 2) - Costs [2012] NSWCA 194
Case
[2012] NSWCA 194
Decision Date

CaseChat Overview and Summary

In *Re Kerry (No 2)*, the Court of Appeal of New South Wales considered an application for prerogative relief brought by the mother and grandmother of a child. This application sought to challenge a decision of the District Court, which had itself been an appeal from the Children's Court concerning care proceedings for the child. The Director-General of Family and Community Services was the respondent defending the application. The application for prerogative relief was unsuccessful.

The central legal issue before the Court of Appeal was whether there were any special factors that would warrant a departure from the general rule that costs follow the event in litigation. Specifically, the respondent sought an order for costs against the unsuccessful applicants, the mother and grandmother.

The Court determined that the general rule regarding costs should apply. The applicants had initiated the proceedings by filing a summons on 18 November 2011. The Court found no special circumstances that would justify departing from the usual order that the unsuccessful party pays the costs of the successful party.

Consequently, the Court ordered that the first and second plaintiffs (the mother and grandmother) pay the first and second defendants' (the Director-General's) costs of the prerogative relief proceedings in the Court of Appeal from 18 November 2011 to the date of the order. The Court clarified that the costs of the District Court proceedings before Balla DCJ were not included in this order.

Orders

Orders of the court

The Court orders that the first and second plaintiffs pay the first and second defendants' costs of the prerogative relief proceedings in this Court from 18 November 2011 to date and the Court notes that:

(a)the summons was filed in these proceedings by the first plaintiff on 18 November 2011; and

(b)the costs of the District Court proceedings before Balla DCJ are not included in the order.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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