Re Paul (No 2)

[2024] NSWSC 106

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

1. 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.

2. 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.

3. Since that time the Secretary has withdrawn the application he made to the Children’s Court of NSW under section 90 of the Children and Young Persons (Care and Protection) Act 1998 NSW (“the Care Act”)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.

4. 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.

5. The Secretary does not object to a grant of leave, and it is an appropriate means of bringing these proceedings to an end.

6. 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 against the Secretary. I have declined to make that formal notation because it is unnecessary to do so. If the child has any rights against the Secretary they are not affected by his mother’s discontinuance of an application for administrative law relief affecting him.

7. By written submissions filed on 1 February 2024 the mother applies for an order that the Secretary pay her costs of these, Supreme Court proceedings.

8. By written submissions filed on 9 February 2024 the Secretary opposes that application and submits that “the proper order” is that there be no order as to the costs of the proceedings.

9. There is no dispute between the parties that (with due regard to the Court’s plenary power under section 98 of the Civil Procedure Act 2005 NSW to make an order for costs and the general rule embodied in rule 42.1 of the Uniform Civil Procedure Rules 2005 NSW that “costs follow the event”) the special character of protective proceedings, of which an application for an exercise of parens patriae jurisdiction is an exemplar, warrants that costs be dealt with by reference to the question, “What, in all the circumstances, is the proper order to make in relation to costs?”

10. The reasons for this approach have been canvassed in many cases, a foundational one of which is the judgment of Powell J in CCR v PS (No 2) (1986) 6 NSWLR 622 at 640E-G where his Honour wrote the following (with editorial adaption):

“I turn, but, in the circumstances, only briefly, to the question of costs. Costs are, of course, in the discretion of the court, but that discretion, being a judicial one, must be exercised in accordance with established principle. Although the principle generally to be applied in inter partes litigation is that costs follow the event, questions of costs in proceedings in the Protective Division [now subsumed in the Equity Division] have, over the years, come to be regarded as exceptions to that general principle. That this should be so is due to the facts, first, that in the normal case, proceedings in this Division are taken in the interests of those thought to be incapable of protecting themselves and their property; and, second, that those who would otherwise be concerned to act to protect the mentally ill or the mentally infirmed [one category of persons, like children, in need of protection] might be deterred from acting if they were to expose themselves to the risk of costs if their applications, even though reasonably made, were unsuccessful. In the light of these facts, the principle normally applied in proceedings in this Division is that the court will make that order, which, in all the circumstances, seems proper.”

11. My attention has been drawn to observations in my earlier judgments of CAC v Secretary, Department of Family and Community Services [2014] NSWSC 1855 at [129]-[134] and CAC v Secretary, Department of Family and Community Services (No 2) [2015] NSWSC 344 at [3] and [7]-[20].

12. In the former judgment paragraphs [129]-[134] read as follows:

“[129]   The Court’s approach to orders for costs in proceedings which invoke its protective jurisdiction is different from that which applies in ordinary civil litigation.

[130]   The ordinary rule in protective proceedings is that the Court may exercise its discretion as to costs, not by reference to a rule that costs follow the event, but having regard to what, in all the circumstances, seems proper: CCR v PS (No 2) (1986) 6 NSWLR 622 at 640; M v M [2013] NSWSC 1495 at [50](n). Not uncommonly, each party is left to bear its, his or her own costs.

[131]   However, where a party unsuccessfully pursues an application for relief in an adversarial manner, it may be that the proper order is for that party to pay or bear the costs of proceedings in whole or part: Ho v NSW Public Guardian [2013] NSWSC 1788 at [15]-[16]; JPT v DST [2014] NSWSC 1735; Re Felicity; FM v Secretary, Department of Family and Community Services (No 3) [2014] NSWCA 226 at [60]-[61]; JS v Secretary, Department of Family and Community Services [2014] NSWCA 441 at [41].

[132]   This approach, more often articulated in cases involving financial management and guardianship orders than in cases involving the care of children, is not inconsistent with Re Kerry(No 2) – Costs [2012] NSWCA 194, where (starting from a premise that the Court’s general practice upon an application of the Civil Procedure Act 2005 NSW, s 98 and the Uniform Civil Procedure Rules 2005 NSW, r 42.1, is that, subject to particular considerations in a specific case, costs ought to follow the event) the Court of Appeal considered particular arguments bearing upon where the costs burden should fall in an administrative law (Supreme Court Act 1970 NSW, s 69) challenge to care proceedings that had been determined in the Children’s Court and, on appeal, the District Court.

[133]   As the contrasting case of X v The Sydney Children’s Hospitals Network (2013) 85 NSWLR 294 at 311 [75]-[78] demonstrates, each case must ultimately depend on its own facts.

[134]   A common (but not necessary) factor in a decision to award costs against an applicant for relief in this Court vis á vis a challenge to proceedings in the Children’s Court (or, on appeal, the District Court) appears to have been the articulation of an ill-disciplined administrative law case, with a concomitant focus on personal rights asserted by the applicant independently (albeit, perhaps, under cover) of an appeal to the protective jurisdiction’s paramountcy principle.”

13. In the second of the two judgments paragraphs [12]-[20] read as follows:

“[12]   In any event, the starting point is to notice, first, the Court’s plenary power to make an order for costs (Civil Procedure Act 2005 NSW, section 98) and, secondly, the general rule (embodied in the Uniform Civil Procedure Rules 2005 NSW, rule 42.1) that costs follow the event.

[13]   The Supreme Court is not a “no costs” jurisdiction. Although the Court has a wide costs jurisdiction, the general rule remains that costs follow the event, unless the Court otherwise orders. Parties to proceedings in the Court conduct litigation at their own risk as to costs.

[14]   In the protective jurisdiction, because of the purposive nature of the jurisdiction (confirmed by Marion’s Case (1992) 175 CLR 218 at 258-259) and accumulated experience, the Court may proceed on the basis that it is generally necessary, and appropriate, to ask “What, in all circumstances, seems the proper order to make in relation to costs?”

[15]   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.

[17] Where proceedings in the Court invoke not only the Court’s protective jurisdiction, but also its jurisdiction (presently embodied, largely, in section 69 of the Supreme Court Act NSW) to grant administrative law relief, on an application for judicial review, different considerations may apply than those dominant in purely protective proceedings. That is because there is a separately identifiable public interest element, and a more adversarial flavour, in the supervision of a statutory tribunal or public official, than there is in protective proceedings. Where the Court’s administrative law jurisdiction is invoked, there may be more scope for operation of the policy that “costs follow the event” than there is in purely protective proceedings, where the operation of the “welfare principle” militates against adversarial litigation.

[18]   That said, every case falls to be determined on its particular facts.

[19]   In these proceedings, starting from with the proposition that “costs follow the event”, but moving quickly to the question “What is the costs order which, in all the circumstances, seems proper?”, the supplementary question arises: What is meant by “proper”?

[20]   It is not necessary to attempt an exhaustive definition of that term, “proper”, or to elevate it beyond its station. The Court has to deal with a wide variety of situations, as variable as the human condition, in exercise of its protective jurisdiction, and in the supervision of the Children’s Court.”

14. Although the summons filed by the mother in these proceedings included a claim for administrative law relief as well as orders upon an exercise of parens patriae jurisdiction, an order was made under rule 28.2 of the Uniform Civil Procedure Rules 2005 NSW at the outset of the proceedings confining the effective operation of the summons to parens patriae questions and reserving the administrative law claims for referral to the Court of Appeal should a need to do so arise. In the event, no such need has arisen, those claims for relief have been discontinued and the procedural orders affecting them have been made in the course of giving directions for the conduct of the proceedings generally, imposing on the parties no cost burden beyond that borne in respect of the parens patriae claims for relief.

15. Upon a determination of what, in all the circumstances, is the proper order for costs, I accept that the Secretary opposed the mother’s application for parens patriae relief because convinced (albeit perhaps unreasonably) that it was in the best interests of the child that the child remain, for the time being, under his care.

16. I am mindful, however, that:

1. the necessity for these proceedings arose from the pre-emptive action of the Secretary in taking the child into care (for a second time) without the leave of any court, and without notice to the mother or the child, in circumstances in which a judge of the District Court of NSW (upon an appeal from the Children’s Court under the Care Act) had, after a lengthy hearing on the merits of the case, recently delivered a considered judgment for return of the child to the mother and the Secretary’s action imposed on the mother a forensic burden which she would not otherwise have had to bear.

2. although he ultimately co-operated in the formulation of orders for the return of the child to the mother on terms designed to acknowledge the respect due to the judgment of the District Court, the Secretary actively opposed the mother’s parens patriae application for most of the time allocated for the hearing of the application on the several occasions it was before the Court.

3. the mother was substantially successful on her application for parens patriae orders.

4. the Secretary’s active opposition to the mother’s parens patriae application caused her to incur substantial costs.

5. if the mother is not compensated for those costs by an order for costs in her favour against the Secretary the resources available to her which might otherwise have been applied in care of the child will be diminished.

6. the Court should be slow to burden an applicant for parens patriae relief with an apprehension that even a successful application for such relief, reasonably made, will not attract an order for costs against a party who has actively and perhaps unreasonably opposed the application.

17. For these reasons, in bringing the proceedings to an end, I have today ordered that the Secretary pay the mother’s costs of the proceedings on the ordinary basis.

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Decision last updated: 14 February 2024