Stokes v D/G Department of Community Services
[2001] NSWSC 322
•30 April 2001
CITATION: Stokes v D/G Department of Community Services [2001] NSWSC 322 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S): SC 13072/1999 HEARING DATE(S): 03/02/2000; 07/03/2000; 21/03/2000 JUDGMENT DATE:
30 April 2001PARTIES :
Raelene Eleanor Stokes (plaintiff)
Director General, Department of Community Services (1st defendant)
Walter Streak (2nd defendant)
Registrar, District Court of New South Wales (3rd defendant)JUDGMENT OF: Hidden J at 1
COUNSEL : J Dupree (plaintiff)
I Bourke (1st defendant)
M Broun QC (2nd defendant)
Submitting appearance (3rd defendant)SOLICITORS: A L Wunderlich & Associates (plaintiff)
Briggs & Associates (2nd defendant)
Crown Solicitor (1st & 3rd defendants)CATCHWORDS: CHILDREN - care proceedings - interim order by Children's Court for access - interlocutory relief in this Court in support of that order - question of costs LEGISLATION CITED: Children (Care and Protection) Act 1987
Family Law Act 1975
Children and Young Persons (Care and Protection) Act 1998CASES CITED: Australian Securities Commission v Aust-Home Investments Pty Ltd (1993) 44 FCR 194
Garwolin Nominees Pty Ltd v Statewide Building Society [1984] VR 469
S v Minister for Youth and Community Services (1986) 23 ACrim R 113
T v H (1985) 3 NSWLR 270
In Re Harris (1936) 37 SR NSW 17
Department of Community Services v Y [1999] NSWSC 644DECISION: Summons dismissed - second defendant to pay plaintiff's costs
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
HIDDEN J
Monday 30 April 2001
Reasons for judgment
1 HIS HONOUR: This judgment deals with the dismissal of a summons filed in this Court on 20 December 1999 and is concerned only with the question of costs. However, that question is not easily resolved and it is necessary to sketch the background and nature of these unusual proceedings.
2 The second defendant, Walter Streak, has a daughter, now aged seven. It seems that his relationship with the girl’s mother did not endure and she has had little or no contact with her. In October 1994 Mr Streak was granted continuous access to the child by the Family Court. The plaintiff, Raylene Stokes, is Mr Streak’s sister and the child’s aunt. Although they were brought up in Perth, both have lived in Sydney for some years. Since 1998 each of them has had the care of the child at different times.
3 In March 1999 care proceedings in relation to the child were instituted in the Children’s Court by the first defendant, the Director General of the Department of Community Services. In the following month the court adjourned the proceedings but, in the interim, made an order placing the child in the care of the Director General. She was placed with Ms Stokes, although Mr Streak continued to have contact with her. In August 1999 the position was reversed. While remaining in the care of the Director General, the child was placed with Mr Streak and Ms Stokes maintained contact with her. There is a conflict in the evidence about the reasons for this arrangement, but that is not a matter which I need to resolve. In November 1999, the court formalised Ms Stokes’ access to the child by an order which restricted the contact she had been enjoying. Again, the reason for this is of no present relevance.
4 In due course the care proceedings were listed for hearing in the Children’s Court in February 2000. On Friday, 17 December 1999 an interim application by Ms Stokes for contact with the child during the Christmas holidays was heard in that court. Among other things, the learned magistrate ordered that she have contact with the child from Monday, 20 December 1999 until Friday, 7 January 2000, noting that she intended to take her to Perth. For that purpose, Mr Streak was ordered to deliver the child to her at Sydney airport on the morning of 20 December. The application had been opposed by the Director General and Mr Streak. Her Worship made the orders at about 1.30pm on 17 December but granted a stay until 4pm that day.
5 An appeal from her Worship’s order lay to the District Court: Children (Care and Protection) Act 1987, s81 (since repealed). No judge of that court was available to hear an urgent application in the afternoon of 17 December. A weekend intervened and, of course, it has not been the practice of the District Court to provide a duty judge during that period. Ms Stokes had booked a flight to Perth, leaving Sydney at 6.30am on the Monday, and her solicitor had informed Mr Streak’s counsel of this on the Friday afternoon. Later that afternoon, Mr Streak’s counsel phoned Ms Stokes’ solicitor to seek her consent for an extension of the stay ordered by the magistrate so that an urgent application could be made to the District Court on the Monday morning. He conveyed his client’s instructions that he would meet the cost of any change in the travel arrangements to Perth. Ms Stokes instructed her solicitor that she would not consent and the solicitor informed counsel accordingly.
6 In the early evening of the Friday, Ms Stokes’ solicitor received a message on her mobile phone from Mr Streak’s counsel that an approach would be made to the District Court on the Monday morning and that, accordingly, there would be little point in anyone being at the airport that morning. The solicitor left a message on counsel’s mobile phone that Ms Stokes required his client to comply with the order of the Children’s Court. She asked counsel to phone her back but he did not. In the afternoon of the Saturday, 18 December, in circumstances which I need not recount, Mr Streak caused a letter from his solicitors to be hand-delivered to Ms Stokes. The letter confirmed his intention to make an urgent application to the District Court on the Monday morning and asked her to consider postponing her trip to Perth until there had been an opportunity to review the magistrate’s orders.
7 It was in these circumstances that I was approached, as duty judge, by Ms Stokes’ solicitor and counsel in the afternoon of Sunday, 19 December 1999. I was presented with the summons initiating the proceedings in this Court, which I directed to be filed on the Monday and to be returnable that day before Bell J, who was duty judge that week. In the meantime, I ordered the Director General to deliver the child to the airport in accordance with the Children’s Court orders, I ordered that Mr Streak be restrained from breaching those orders, and I gave certain directions for urgent service of copies of my orders and related documents.
8 I should record that the Registrar of the District Court was joined as the third defendant, as certain orders were sought against him in the summons. However, they were not pressed. The Registrar entered a submitting appearance and no order for costs is sought against him.
9 As it happened, Mr Streak’s application in the District Court was dealt with on the Monday and Bell J stood the summons in this Court out of the list. Twigg DCJ refused a further stay and the child was delivered to Ms Stokes later that day.
10 In the light of that development, the summons should be dismissed. However, counsel for Ms Stokes seeks an order for costs against the Director General and Mr Streak. He drew an analogy with Garwolin Nominees Pty Ltd v Statewide Building Society [1984] VR 469, where costs were awarded to a plaintiff who had discontinued proceedings after the defendant had taken steps to rectify the problem which had given rise to them. In Australian Securities Commission v Aust-Home Investments Pty Ltd (1993) 44 FCR 194, Hill J examined authorities dealing with the situation where neither party wishes to proceed. At 201 his Honour stated his conclusions as follows:
- These cases seem to me to support the following propositions being made:
- (1) Where neither party desires to proceed with litigation the Court should be ready to facilitate the conclusion of the proceedings by making a cost order: …
- (2) It will rarely, if ever, be appropriate, where there has been no trial on the merits, for a Court determining how the costs of the proceeding should be borne to endeavour to determine for itself the case on the merits or, as it might be put, to determine the outcome of a hypothetical trial:… This will particularly be the case where a trial on the merits would involve complex factual matters where credit could be an issue.
- (3) In determining the question of costs it would be appropriate, however, for the Court to determine whether the applicant acted reasonably in commencing the proceedings and whether the respondent acted reasonably in defending them….
- (4) In a particular case it might be appropriate for the Court in its discretion to consider the conduct of a respondent prior to the commencement of the proceedings where such conduct may have precipitated the litigation:…
- (5) Where the proceedings terminate after interlocutory relief has been granted, the Court may take into account the fact that interlocutory relief has been granted…
11 Counsel for Ms Stokes submitted that this case falls squarely within the last three points in that passage. He relied upon the fact that I granted interlocutory relief on the Sunday upon the basis that Mr Streak’s pursuit of relief in the District Court the next day would have frustrated Ms Stokes’ arrangement to travel to Perth with the child in accordance with the magistrate’s orders. He had conveyed through his counsel his intention not to deliver the child at the airport even though he had been unable to secure a stay of those orders. Senior counsel for Ms Stokes argued that Mr Streak himself could have sought interlocutory relief in this Court if he could not be heard in the District Court on the Friday afternoon.
12 The primary argument of senior counsel for Mr Streak was that this Court had no jurisdiction in the matter as the welfare of children is a field covered by the Family Law Act 1975 (Cth) and, at the time these proceedings were instituted, the Children (Care and Protection) Act 1987. (Relevant provisions of the latter Act have since been repealed and are now to be found in the Children and Young Persons (Care and Protection) Act 1998, which came into effect last year.) Counsel relied upon the fact that the State legislation invested jurisdiction in the Children’s Court, with a right of appeal to the District Court. This matter was examined, in a different context, by Austin J in Department of Community Services v Y [1999] NSWSC 644, where his Honour found that the Federal and State legislation did not deprive this Court of its inherent jurisdiction relating to the welfare of children: pars 85-97 of the judgment. I respectfully agree.
13 Senior counsel’s secondary argument was that, assuming there to be jurisdiction, this Court should not have intervened in the matter because it was catered for by the relevant statutory framework, including the right of appeal to the District Court. He relied upon a line of authority, commencing with In Re Harris (1936) 37 SR NSW 17, that the Court should exercise its jurisdiction in such a case only in special or exceptional circumstances. That is an adequate summary of the effect of those cases, although they have not spoken with one voice about how the test should be expressed: see T v H (1985) 3 NSWLR 270 at 274. This aspect of the matter has troubled me, but I have concluded that there were exceptional circumstances in the present case. As I have said, by the time I was approached as duty judge on the Sunday afternoon Ms Stokes had made her travel arrangements, as the orders of the Children’s Court entitled her to do, and she had good reason to believe that those orders, which were subsisting and had not been stayed, would not be complied with.
14 Counsel for the Director General relied upon authority that this Court would not normally award costs in proceedings relating to the welfare of children because they are not adversarial in the normal sense: see the judgment of Powell J in S v Minister for Youth and Community Services (1986) 23 ACrim R 113 at 121. He submitted that, in any event, there was no factual basis upon which costs could fairly be ordered against the Director General. This requires a brief examination of the contact between Ms Stokes’ solicitor and the Department on Sunday, 19 December 1999 and the following day.
15 In the afternoon of the Sunday the solicitor contacted the Department’s Child Abuse Line, an after-hours emergency service, to enquire how documents might be served over the weekend. A departmental officer informed her that there was no procedure for service after hours and that she should contact the Department’s legal section the following morning. The solicitor faxed the documents to the after-hours service that afternoon, although she was told that that office was in no position to accept service. Before 9am on the Monday the solicitor served the documents at the Department’s Redfern office and shortly after 9am they were handed to Mr David Cowgill, the officer having the management of the child. At about the same time the solicitor served the documents at the office of the State Crown Solicitor.
16 Mr Cowgill gave evidence that he had been present at the proceedings in the Children’s Court on the Friday and he was satisfied that Mr Streak understood the magistrate’s orders. Mr Streak told him that he intended to take steps to institute an appeal that afternoon. Mr Cowgill waited in his office until the early evening, when he was told that Mr Streak had been unable to get the matter before the District Court. He was not informed of any further developments over the weekend, and he had no reason to think that Mr Streak would not deliver the child to the airport as required.
17 Mr Cowgill accepted that the Director General, having the care of the child by virtue of the Children’s Court order of April 1999, had a duty to ensure compliance with the magistrate’s orders. However, Mr Streak had the day to day care of the child at the relevant time, and I accept Mr Cowgill’s evidence that he expected him to obey those orders and that nothing came to his attention before the Monday morning to suggest otherwise. I also accept that the functions of the after-hours emergency service were such that it was not the appropriate recipient of court process. If the Department still has no provision for the service of documents outside normal business hours, perhaps it should have. However, in the circumstances as they stood at the time, it does not appear to me that officers of the Department acted unreasonably or irresponsibly.
18 Senior counsel for Mr Streak submitted that, far from her being awarded costs, Ms Stokes should pay his costs and those of the Director General. Counsel for the Director General did not seek costs but resisted any order in favour of Ms Stokes. For the reasons I have given, I would not order costs against the Director General. However, the same cannot be said of Mr Streak. I appreciate that he was unable to approach a judge of the District Court on a Friday afternoon and that he was prepared to meet the costs of any alteration of Ms Stokes’ travel arrangements. Nevertheless, he took it upon himself to disregard an effective order of the magistrate that he deliver the child to Ms Stokes on the Monday morning in circumstances where, in my view, he could have approached this Court for urgent interlocutory relief. In the event, on the Monday morning a District Court judge found insufficient merit in his appeal to warrant any further stay of that order. After careful consideration, I am satisfied that he should meet the plaintiff’s costs of the whole of the proceedings in this Court.
19 Accordingly, the summons is dismissed. The second defendant should pay the plaintiff’s costs. In the summons the plaintiff sought those costs on an indemnity basis, but that matter was not pressed in argument and I would not make that order.
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