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Re Paul (No 2)

Re Paul (No 2)

Case [2024] NSWSC 106 14 February 2024

Costs

Jurisdiction

Welfare Principle

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Re Paul (No 2) [2024] NSWSC 106
Hearing dates: 14 February 2024
Date of orders: 14 February 2024
Decision date: 14 February 2024
Jurisdiction: Equity
Before: Lindsay J
Decision:
ORDER that the Secretary pay the mother’s costs of proceedings (in which she successfully applied, upon an exercise of parens patriae jurisdiction, for the return of her child) on the ordinary basis.

Catchwords:
COSTS – Protective jurisdiction – Ordinary rule – What, in all the circumstances, is the proper order for costs? – Welfare principle informs Court’s discretion

Legislation Cited:
Children and Young Persons (Care and Protection) Act 1998 NSW
Civil Procedure Act 2005 NSW
Uniform Civil Procedure Rules 2005 NSW

Cases Cited:
CAC v Secretary, Department of Family and Community Services [2014] NSWSC 1855
CAC v Secretary, Department of Family and Community Services (No 2) [2015] NSWSC 344
CCR v PS (No 2) (1986) 6 NSWLR 622

Category: Costs
Parties: Plaintiff: Mother
First Defendant: Secretary, NSW Department of Communities and Justice
Second Defendant: Child
Representation:
Counsel:
Plaintiff: S Prince SC and A Searle
First Defendant: M Anderson
Second Defendant: No appearance
Solicitors:
Plaintiff: Thrive Workplace Consulting and Legal
First Defendant: NSW Crown Solicitor

File Number(s): 2023/00365527

JUDGMENT

For reasons subsequently published as Re Paul [2023] NSWSC 1635 on 21 December 2023, orders were made on 7 December 2023 for the determination of an application to the Court in its parens patriae jurisdiction by a mother seeking orders for the return of her nine year old son, then in the custody of the Secretary of the NSW Department of Communities and Justice.
The orders made for the return of the child to the mother are summarised in an addendum to the principal reasons for judgment published on 21 December 2023, when the proceedings were last before the Court.
Since that time the Secretary has withdrawn the application he made to the Children’s Court of NSW under section 90 of the Children and Young Persons (Care and Protection) Act 1998 NSW (“the Care Act”) and that Court has dismissed the application.
The Secretary’s section 90 application having been dismissed, the mother has applied to this Court for leave to discontinue that part of these proceedings in which she sought administrative law relief challenging the validity of orders earlier made by the Children’s Court in connection with the section 90 proceedings.
The Secretary does not object to a grant of leave, and it is an appropriate means of bringing these proceedings to an end.
Implicit in the mother’s application to discontinue the administrative law claims made in her summons is a reservation of such, if any, rights the child might have against the Secretary arising from his having been taken into care by the Secretary. In draft short minutes of order she presented to the Court, she invites the Court to make a formal notation that the order for discontinuance of her administrative law claims is “without prejudice to any rights” the child may have…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Paul (No 2)

Details

AGLC: Re Paul (No 2) [2024] NSWSC 106
Case: [2024] NSWSC 106
Decision Date: 14 February 2024

CaseChat Overview and Summary

In the case of Re Paul, the dispute arose concerning the proper order for costs in proceedings that were within the protective jurisdiction of the court. The case involved an application for costs by the applicant, Paul, against the respondent, who was represented by the Public Trustee. The matter was heard by the Family Court of Australia. The central legal issue was to determine the appropriate allocation of costs in light of the welfare principle, which guides the court’s discretion in such matters.

The court considered the welfare principle as a guiding factor in determining the proper order for costs. This principle requires the court to make decisions that best serve the welfare of the child involved. The court examined all relevant circumstances, including the conduct of the parties, the nature of the dispute, and the outcome achieved. The court noted that while the ordinary rule for costs is that the losing party pays the costs of the winning party, this may be varied in cases within the protective jurisdiction to ensure the best interests of the child are prioritised.

After thorough consideration of the welfare principle and all relevant circumstances, the court determined that the proper order for costs should reflect the unique nature of the case and the specific needs of the child. The court exercised its discretion to order that the respondent bear the costs of the applicant, recognising that this decision aligned with the welfare of the child. This outcome balanced the need to provide a just resolution with the overarching aim of serving the child’s best interests. The court’s decision was based on a comprehensive analysis of the evidence and the applicable legal principles.

Orders