Wilson v Department of Human Services; Re Anna (No 2)
[2011] NSWSC 545
•01 July 2011
Supreme Court
New South Wales
Medium Neutral Citation: Wilson v Department of Human Services; re Anna (No 2) [2011] NSWSC 545 Hearing dates: 6 June 2011; 30 June 2011 (Further Submissions) Decision date: 01 July 2011 Jurisdiction: Equity Division - Adoption List Before: Hallen AsJ Decision: 1. Order that the Plaintiffs not be permitted to inspect documents produced on subpoena in the proceedings.
2. Order that the Plaintiffs pay the costs of the Defendant's notice of motion.
3. Order the Defendant to pay the Plaintiffs' costs of the proceedings, limited to the costs of the Supreme Court proceedings.
4. Order the Plaintiffs to pay the Defendant's costs thrown away by the adjournment of the hearing on 9 May 2011.
5. Order that to the extent that the costs of the Plaintiffs are assessed, or agreed, at a sum greater than the costs of the Defendant on the notice of motion, and the costs thrown away by the adjournment of 9 May 2011, as assessed, or agreed, the Defendant's costs may be set-off against the Plaintiffs' costs.
Catchwords: Application for costs by self represented Plaintiffs in care proceedings - Costs sought include costs for proceedings in Children's Court - Notice of motion filed by Defendant to set aside a subpoena for production Legislation Cited: Children and Young Persons (Care and Protection) Act 1998
Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005Cases Cited: A and B v Director of Family Services (1997) 138 FLR 51
Alan, Re [2008] NSWSC 379; (2008) 71 NSWLR 573
B v P [2000] FamCA 392
Barbara, Re [2006] NSWSC 536
Cachia v Hanes (1994) 179 CLR 403
Cary v Owners of Strata Plan No. 7241 [2002] FMCA 18
Department of Community Services v SP [2006] NSWDC 168; (2006) 4 DCLR (NSW) 113
Director-General of the Department of Community Services v Priestley [2004] NSWSC 639
Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373
Elizabeth, Re [2007] NSWSC 729
Farquar and Farquar (No 2) [2008] FamCA 682
Frances and Benny, Re [2005] NSWSC 1207
Frieda and Geoffrey, Re [2009] NSWSC 133
Georgia and Luke, Re [2008] NSWSC 1277
Georgia and Luke (No 2), Re [2008] NSWSC 1387
H v H [2006] FamCA 167
Julia, Re [2010] NSWSC 1373
Kerry, Re [2010] NSWCA 232
L, Re [2010] NSWSC 624
Latoudis v Casey (1990) 170 CLR 534
Lawrence v Nikolaidis & Co (2003) 57 NSWLR 355
Liam, Re [2005] NSWSC 75
M & M v Minister of Community Welfare (1986) 43 SASR 593
Maronis Holdings Ltd v Nippon Credit Australia Ltd [2002] NSWSC 838
Orr v Holmes (1948) 76 CLR 632
Oshlack v Richmond River Council (1998) 193 CLR 72
Preston v Commissioner for Fair Trading [2011] NSWCA 40
San v Rumble (No 2) (2007) 48 MVR 492; [2007] NSWCA 259
Shephard v Blueberry Farms of Australia (Corindi) Ltd (2001) 162 FLR 339
State of New South Wales v Stanley [2007] NSWCA 330
Sullivan and Department of Industry, Science and Technology, Re (1998) 51 ALD
Sutton London BC v Davis (No. 2) [1995] 1 All ER 65
Universal Press Pty Ltd v Provest Ltd (FCA, 14 July 1989, unreported)
Victoria, Re [2002] NSWSC 647; (2002) 29 Fam LR 157
W (deceased) v W [2004] FamCA 319
Wentworth v Rogers (No 3) (1986) 6 NSWLR 642
Wilson v Department of Human Services; re Anna [2010] NSWSC 1489
Winter v Fleeton [2002] WASCA 73
X v Nationwide News Pty Ltd [2010] NSWDC 147
Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290Category: Principal judgment Parties: Ms Wilson (first Plaintiff)
Mrs Wilson (second Plaintiff)
Department of Human Services (Defendant)Representation: Ms Wilson (first Plaintiff not legally represented)
Mrs Wilson (second Plaintiff not legally represented)
Mr W Hunt; Mr P Guterres (Defendant)
Ms Wilson (first Plaintiff appeared in person)
Mrs Wilson (second Plaintiff appeared in person)
Crown Solicitor's Office (Defendant)
File Number(s): A72/2010
Judgment
The Applications
HIS HONOUR: On 9 May 2011, there was listed before me, for hearing, an application for costs by self represented Plaintiffs in proceedings that had been heard by Palmer J from 13 to 16 December 2010. His Honour had delivered reasons for judgment on 17 December 2010, the medium neutral citation of which is Wilson v Department of Human Services; re Anna [2010] NSWSC 1489. For reasons that will be discussed later, the Plaintiffs' application did not proceed on that day and the application was heard on 6 June 2011.
There was, also listed on 9 May 2011, a notice of motion, filed on 7 March 2011, by the Defendant, the Department of Human Services, to set aside a subpoena for production, issued by the first Plaintiff, which was returnable on the first day of the hearing before Palmer J, but which had not been called upon. For the same reasons, that notice of motion did not then proceed and was also dealt with on 6 June 2011.
Hereafter, I shall, where necessary, identify the parties by the same pseudonym used by his Honour to protect her privacy.
Background to Applications
On 25 February 2011, at the request of the parties, following delegation of the matter to me, in the absence of Palmer J on sabbatical, I made orders, consequential upon his Honour's reasons for judgment, that the Children's Court orders allocating parental responsibility to the Minister for the child, Anna, be set aside. On that day, Anna was returned to the care of the first Plaintiff, Ms Wilson.
All parties had consented to me dealing with the remaining issues and claims to finality. I did not see any problem with this, as there are cases in which it has been held that, in certain circumstances, costs orders in a proceeding may be made by a Judge who did not deliver the judgment giving rise to the application for costs: Wentworth v Rogers (No 3) (1986) 6 NSWLR 642; Orr v Holmes (1948) 76 CLR 632.
It was unnecessary, thereafter, for the attendance of the independent child's representative, to appear and he was excused from further attendance before the court.
On 25 February 2011, an oral application for costs having been made by Ms Wilson, I directed that she particularise her claim for costs by service of a schedule of those costs. I extended the time for service of that schedule on two other occasions. I did so because the Plaintiffs had not complied with my direction; because it seemed to me that the amount of costs in issue might be relatively small; and because I thought that the parties may be able to come to a commercial resolution of that issue. In each relevant respect, I was proved wrong.
Since that time, there have been several adjournments and extensions of time for complying with the directions made by me granted to the Plaintiffs. Only shortly before the final hearing, did they comply with the directions.
Contested Adjournment Application
On 9 May 2011, the date on which the outstanding issues were set down for hearing, only the second Plaintiff, Mrs Wilson, appeared. She, on behalf of the Plaintiffs, sought a further adjournment of the proceedings. No notice of the application for the further adjournment had been given to the court or to the Defendant.
In order to assist the Plaintiffs, I caused the first Plaintiff to be contacted, by telephone link, so that she could state any additional reasons why the adjournment should be granted and, if it was refused, so that she could participate, in the proceedings, if she wished. Despite various attempts to contact her, these were, for the most part, unsuccessful.
The other bases for the further adjournment of the costs notice of motion were:
(a) the state of health of the second Plaintiff, it being asserted that she has been diagnosed with minor cerebral vascular accident (stroke), early this year, which may in part have been attributed to the stress of having the child, Anna, taken, in April of 2009, and then returned to the first Plaintiff in February this year.
(b) the needs of settling Anna into her home had taken precedence over the outstanding legal issues.
The application for the further adjournment of the costs application and the Defendant's notice of motion was opposed. Mr Hunt of counsel pointed to the number of adjournments to which the Defendant had consented, since the oral application had first been made, and that the Defendant's costs of defending the application for the costs of the proceedings were becoming significant. He had been briefed to appear to deal with the matters on that day and that if the matter were adjourned again, additional costs would be incurred.
Whilst sympathetic to the reasons put forward on behalf of the Plaintiffs, but because I had extended the time for compliance with my directions, at the request of the Plaintiffs, without opposition, on a number of previous occasions since February 2011, and because it seemed to me that both issues could be determined as a matter of principle, I refused the Plaintiffs' application for further adjournment.
In order to cause as little inconvenience to the first Plaintiff, who was then not in Sydney, I then indicated that the arguments would proceed by telephone link. I allowed the first Plaintiff a short opportunity to consider the submissions that she wished to put and stood the matter down in the list so that she could do so. However, upon my return to Court, despite several attempts by court staff to contact her by telephone, it remained impossible for the matter to proceed as I had directed.
In those circumstances, and having informed the first Plaintiff that she could participate in the hearing, by telephone, I felt, then, that I could not deal with the matter without her participation. In the circumstances, I adjourned the matter for hearing, making it clear that no further adjournment was likely to be permitted. I also made directions to ensure that the parties and the Court knew precisely what the Plaintiffs intended to rely upon in support of the application for costs. I reserved the question of costs thrown away by the matter having to be adjourned to 6 June 2011.
The Final Hearing of the Outstanding Issues
At the hearing of the application for costs, the Plaintiffs relied upon an affidavit sworn by each on 3 February 2011, as well as a letter sent to the Defendant and to the Court (Ex A), which identified the nature and quantum of the costs and disbursements that were sought.
The Defendant relied upon no affidavit on the application for costs, but read an affidavit sworn 4 March 2011 of the solicitor acting for the Defendant on the notice of motion to set aside the subpoena.
Each party filed written submissions that I shall leave with the papers. However, the Plaintiffs' submissions were limited to their application for costs.
No oral evidence was given and no cross-examination occurred.
Subsequent Events
Two days after the conclusion of the hearing before me, on 8 June 2011, the second Plaintiff, on behalf of the Plaintiffs, by telephone, to my Associate, requested that I permit the Plaintiffs a further opportunity to file additional submissions and a reference to authorities upon which it was intended to rely. The second Plaintiff was informed by my Associate that further submissions would be accepted only if the consent of the Defendant was obtained, or if the matter was listed before me for argument about leave to file further submissions. She was also informed that this consent should be sought promptly so that the finalization of the matter would not be unduly delayed.
My Associate then informed the Defendant's solicitor of the telephone request that had been received.
My Associate, subsequently, was informed that the Defendant's solicitors had written to the Plaintiffs suggesting a course that might be followed. A copy of a letter, dated 8 June 2011, from the Crown Solicitor to the Plaintiffs, apparently forwarded by facsimile transmission and marked "Urgent", was sent to my Associate. In the letter, a request was made by the Crown Solicitor that a copy of all further material intended to be relied upon by the Plaintiffs be provided by 10 June 2011, so that consideration could be given to whether the Defendant would consent to allowing them to provide that material to the Court.
On 15 June 2011, an email was received, this time from the Crown Solicitor, to which email was attached a copy of a letter dated 15 June 2011, addressed to the Plaintiffs. This letter referred to "written submissions of the first plaintiff in response to the defendant regarding costs". The Defendant consented to the document being filed and to the Court reading that document if thought appropriate. However, I did not then receive the submissions referred to.
There was, then, a further request, by telephone, on 20 June 2011, by the second Plaintiff, made to my Associate, requesting that I delay publishing the reasons for Judgment.
In these circumstances, I requested my Associate to send an email to the Plaintiffs, with a copy to the Defendant, in the following terms:
"Dear [Ms Wilson],
Your mother has recently contacted his Honour's Chambers, by telephone, to seek his Honour's permission to have the Court allow the Plaintiffs to put on further evidence (originally to make further submissions) on the application for costs, which application was heard on 6 June 2011.
Today, she stated that you have recently sought the assistance of a solicitor and will be seeing a barrister tomorrow and that you wished to have his Honour delay delivery of the reasons for judgment regarding costs for an unspecified period of time, but until after meeting with the barrister tomorrow.
As previously indicated to your mother, any request by you to rely upon further evidence or to make further submissions should be made formally, by way of Notice of Motion.
It is not appropriate for the Plaintiffs to continue to contact Chambers directly to seek extensions of time and request permission to do things. When notice of any such application is made by telephone, and without notice to the Defendant, it is even more inappropriate.
His Honour is in a position to deliver reasons for Judgment but will delay doing so to enable the Plaintiffs, if so advised, to file and serve a notice of motion and any supporting evidence.
This opportunity should not be seen as an indication that any relief sought in the notice of motion will be granted.
Any notice of motion should be provided to me, and served upon the Defendant, no later than 4:00 p.m. on 24 June 2011. His Honour will then list the matter next week, so that he can determine the notice of motion.
His Honour will simply proceed to deliver his reasons for Judgment if the notice of motion and the supporting evidence is not filed by 4:00 p.m. on 24 June 2011. You and the Defendant will be informed of when this is to occur in these circumstances.
You should provide a copy of this e-mail to both your solicitor and barrister.
A copy of this e-mail has, of course, been sent to the Defendant's solicitor."
No notice of motion was received.
Despite making it clear that it was inappropriate to make applications of this type in the way that the Plaintiffs had made such applications, on 21 June 2011, there was forwarded to my Chambers a letter, from the first Plaintiff, sent by facsimile transmission, which was, relevantly, in the following terms:
"As advised and in the hope of avoiding further listing I kindly request to extend the time before Justice Hallen delivers his judgment in regards to costs in the above matter. Due to the circumstances, and as mentioned by the Defendant in court they wish to only concede to the Supreme Court Costs I have had little choice but to obtain urgent legal advice with the possibility, depending on that advice, to submit further submissions. Fortunately late last week a Solicitor has been able to secure an urgent appointment with Legal Counsel regarding this matter early this week.
I await in anticipation, whether leave for an extension, prior to judgment being delivered will be granted"
A further letter was sent to my Chambers, from the Plaintiffs, by facsimile transmission, on 28 June 2011, in the following terms:
"Further to my letter dated 20 th June 2011, I confirm I have received advice from Legal Counsel, I confirm my resolution remains the same in seeking full costs against the Defendant. There are now further costs and expenses being incurred in pursuing advice and the possible attendance of Counsel for these costs against the Defendant.
I am now in the process of re-evaluating (financially speaking) and will be attempting as I have done throughout the entire proceedings to keep costs down and to a minimum in the hope of a peaceful outcome and resolution.
I will naturally communicate further and without undue delay once I have secured the necessity's, I hope this meets with the Courts approval."
Upon receipt of this letter, the matter was re-listed yesterday.
The first Plaintiff appeared, as did Mr Gutterres of counsel, for the Defendant. I enquired of her whether she wished to adduce further evidence, and if so, the nature of that evidence. She told me that she did and that the evidence went to the amount of costs, with it being likely that the costs sought would be reduced.
Then, I asked whether she sought, also, to make further submissions, and, if so, the nature of those submissions. She told me that she did and that the nature of the submissions related to the non-applicability of s 88 of the Children and Young Persons (Care and Protection) Act 1998 ("the Care Act").
Mr Gutterres submitted that this matter had been dealt with in supplementary submissions provided to the Defendant on 10 June 2011, a copy of which was then made available to me. I have now read those written submissions, which confirmed the submission of counsel.
In the circumstances, I concluded that since I was not determining the quantum of the Plaintiff's costs, in any event, and that since the supplementary submissions of the Plaintiffs could now be read, not much point would be served by allowing the Plaintiffs any further time. Accordingly, I indicated that I was in a position to deliver judgment.
Before turning to the submissions and my determination of the issues, it is necessary to refer, briefly, to the background facts and to the findings in the reasons for judgment.
The Background Facts
On 29 April 2009, the child, Anna, had been placed under the parental responsibility of the Minister for Community Services pursuant to an interim order of the Children's Court of New South Wales at Woy Woy made under the Care Act.
Ms Wilson filed a Summons on 22 February 2010 seeking the removal of the Children's Court proceedings into this Court and the return of Anna to her. Bergin CJ in Eq dismissed that Summons on 14 April 2010.
Ms Wilson filed another Summons on 25 May 2010, being an application to this Court, in its parens patriae jurisdiction, for the return of the child to her. The Department had, by then, begun implementing the process of long term foster care for Anna with a view to her adoption.
On 24 June 2010, the matter was listed for mention before Palmer J. Ms Wilson did not appear. His Honour ordered that the matter be removed from the list, that the matter not be re-listed without prior leave granted by him, or the Adoptions List Judge, and that the Registrars of Equity and Common Law Divisions not list any proceedings filed by her, or by the second Plaintiff without prior leave from the Adoptions List Judge.
On 11 October 2010, the Children's Court made final orders allocating parental responsibility for Anna until she attained 18 years of age to the Minister for Community Services.
On 12 October 2010, Ms Wilson appeared before Palmer J, who then listed the matter for mention on 29 October 2010. The matter was further mentioned on 15 and 22 November 2010.
On 22 November 2010, Mrs Wilson, the second Plaintiff, was joined to these proceedings on the application of the Independent Legal Representative for the child.
The Judgment of Palmer J
Before his Honour, the Defendant, and Mr Chapman, a solicitor who appeared as the child's independent legal representative, opposed the return of Anna to Ms Wilson's care, despite it being conceded that Ms Wilson obviously loved and cared for her daughter. The basis for the opposition was that there was "an unacceptable risk" of harm to Anna if she was returned to the care of Ms Wilson. The reasons advanced for asserting the unacceptable risk are set out at [68], [69] and [72] of his Honour's reasons for judgment.
After a hearing that lasted 3 days, in which evidence was given by a number of witnesses, including experts, his Honour concluded that the reasons advanced did not give rise to any unacceptable risk. He dealt with the reasons why this was so at [74] to [83] of his reasons for Judgment.
His Honour, at [19], also noted:
"In this application I have read the material tendered in the Children's Court and I have been taken to parts of the transcript of the proceedings in that Court - all of which are in evidence. I have also had, over a period of three days, extensive evidence from Departmental officers, two psychiatrists and Ms Wilson's general practitioner, as well as evidence from Ms Wilson and her parents. All of this evidence is directed to the single essential issue in the case in this Court: what is now, in all of the present circumstances, in the best interests of Anna: to restore her - perhaps gradually and under supervision - to the care of her mother, or to sever forever the parental bond in order to implement a care plan directed towards Anna's adoption."
Thus, the Plaintiffs' application before his Honour succeeded. His Honour concluded that the court should retain the supervision of Anna until a final order as to her care was made and gave directions regarding the steps that should be implemented to achieve that result.
It is fair to say that his Honour found a number of problems with the way the case had been conducted in the lower Court. I respectfully refer to what his Honour said at [6], [7], [10], [13], [103] and [104] of the reasons for Judgment. The preliminary views, to which his Honour had initially come, namely that the learned Magistrate may have erred in precluding Ms Wilson from contesting that there was an acknowledged need for a care order at the time of Anna's birth and that the Magistrate may have given insufficient weight to the exemplary care which Ms Wilson had devoted to Anna as evidenced by the contact visit reports, were confirmed: [99] - [100].
In relation to the conduct of the Department in taking Anna, his Honour concluded at [49] - [50]:
"49 On the evidence which she then had and in the absence of co-operation from Ms Wilson and her mother, Ms Jones was, in my opinion, entirely justified in forming the view that Ms Wilson's baby was at serious risk of harm and should be taken into care at birth on an interim basis until a proper assessment of the risks could be made.
50 Accordingly, while I understand Ms Wilson's shock and grief at the taking of Anna, I can find no fault in [the manager of case work in the local office of the Department] or in the Department in acting as they did. I have no doubt that [the manager of case work] genuinely believed that she was acting in the best interests of Ms Wilson's child."
In addition, there was no adverse comment, in the reasons for Judgment, on the way in which the Department had conducted the case before his Honour.
His Honour, at [3], stated:
"If there had been more understanding and co-operation between the Department and Ms Wilson at the very beginning, I think it highly probable that this tragedy would never have happened. However, despite the initial, repeated endeavours of the Department to engage co-operatively with Ms Wilson, such was her shock, grief and anger at the taking of Anna that she believed every action of the Department to be part of a design to thwart Anna's return to her."
His Honour was not required to deal with the costs of the proceedings at the time of giving judgment, as there were steps to be taken before the matter could be finally concluded.
Notice of Motion to set Aside Subpoena
On the issue of the subpoena the subject of dispute, served by the Plaintiffs, I note that it relates to the production of documents in the possession of the Department at the time of Anna's removal. It deals specifically with "current documentary evidence on 27 th April 2009 ..." being "medical evidence ... evidencing obsessive compulsive disorder" and "evidencing that [Ms Wilson] live (sic) in a domestic violent situation".
In order to identify, specifically, the documents referred to as being before his Honour, I directed that the Department's legal representatives to inform the Plaintiffs, in writing, of those documents. I have been informed that this was done. Ultimately, neither party sought to refer to them and the documents themselves were not relevant to my considerations.
Submissions on the Subpoena
The Defendant relies upon a part of the transcript of the events that took place on 15 December 2010 before Palmer J (T189.22 - 190.05). In summary, counsel for the Department made a specific reference to the disputed subpoena, stated that it had not been called upon, and that the documents were before the court in any event.
The transcript also reveals that when asked by his Honour, whether there was any other evidence sought to be relied upon, the first Plaintiff answered in the negative. (A copy of the relevant pages of the transcript had been provided to the Plaintiffs under cover of letter dated 28 February 2011.)
It was submitted that to allow the subpoena to be called upon, now, would be an abuse of process since the substantive proceedings had been determined. Alternatively, it was submitted that there was no longer, any legitimate forensic purpose in the subpoena. In particular, it was submitted that the Plaintiffs could not demonstrate that the documents would materially assist on an identified issue.
The Plaintiffs submitted that the documents the subject of subpoena, were still required. They submitted that the child was taken "with no current medical evidence and no evidence of current domestic violence" which would lead to a serious risk of harm, or which might have affected the safety and/or welfare of the child. They submitted that the documents sought in the subpoena would establish that there was no such evidence available and that the proceedings in the Children's Court should never have been commenced. If those proceedings had not been commenced, there would have been no need for the Supreme Court proceedings.
The first Plaintiff frankly conceded, in her oral submissions, that the documents sought could not help me to determine the issue of costs, but that she wanted to inspect the documents to "ascertain the basis upon which the child was taken" in April 2009. She also acknowledged that there was no other reason for seeking access to the documents and that the topic of the circumstances in which Anna was taken had been dealt with by Palmer J in his reasons for Judgment.
Determination of Subpoena Issue
Hill J in Universal Press Pty Ltd v Provest Ltd (FCA, Hill J, 14 July 1989, unreported) said:
"It must ultimately be borne in mind that a subpoena is intended to require the production of documents so that those documents can be available for tender during a trial and for the purposes of it. I use trial as encompassing of course interlocutory motions should such motions be relevant. In this context I would refer to what was said by Bowen LJ in Elder v Carter (1890) 25 QBD 194] (at p 201, 202):
'But I am as certain as one can be of anything with regard to practice, that does not intend to enact that at any stage of a proceeding a judge may make, subject to his discretion, an order on a third person for production of a document which belongs to the third person, unless the production of it at that moment is a thing to which the parties are entitled for the purpose of justice; and you are not entitled, for the purpose of justice at any moment during suit, simply because you are a litigant, to see what is in the possession of a third person and to have production of it. Such a thing was never heard of...'"
In the present case, the proceedings in the Children's Court have been dealt with. There was no appeal in respect of the Children's Court proceedings and no costs orders were made in those proceedings.
In the proceedings brought in this Court, it was not necessary for Palmer J to find that the Magistrate erred in fact-finding, or in law, in making the orders that the Children's Court then did. His Honour's determination related to whether Anna should then be returned and, if so, when.
Nor is it for me to determine whether or not the Children's Court proceedings were properly commenced. That issue, to the extent it was relevant in the Supreme Court proceedings, has, in fact, already been determined by his Honour. Whilst I appreciate that the Plaintiffs wish to inspect the documents sought in the hope of establishing that there was no basis for taking Anna, in the first place, this matter was dealt with by his Honour and his reasoning and conclusion was set out in [37] - [50].
The sole question remaining in the proceedings is whether the Plaintiffs' costs of the Supreme Court proceedings should be paid since they were successful in those proceedings.
It seems to me that the evidence available, as at 27 April 2009, will not assist in the determination of that issue. Furthermore, even if the documents were relevant, the substance of the Plaintiffs' submission may require me to go behind his Honour's conclusions about the approach of the Defendant in taking Anna and in conducting the proceeding in the Children's Court as a basis for making a costs order.
In the events that have happened, particularly since the sole issue in these proceedings was whether there existed an "unacceptable risk" at the time of the hearing before Palmer J in December 2010, I do not regard it as a legitimate forensic purpose to permit inspection of the documents the subject of the subpoena, at this stage, in order to permit the Plaintiffs "to ascertain the basis upon which the child was taken" in April 2009.
In those circumstances, I accede to the Defendant's application to prevent the subpoena now being called upon and I so order. That will finally determine all of the issues that relate to the principal proceedings except the issue of costs.
In the circumstances, since the Plaintiffs have continued to seek inspection of those documents and have failed, they should pay the Defendant's costs on the notice of motion.
The Submissions on Costs of the Proceedings
The Plaintiffs' summary of the costs and disbursements that are claimed, total $49,983.13. However, as the first Plaintiff frankly conceded during oral submissions, most of those costs and disbursements were incurred in the Children's Court proceedings. In fact, the only items that related to the Supreme Court proceedings were the costs of a letter from a doctor ($24.55), the costs of a consultant psychiatrist for reading materials ($1,005.10), the costs and expenses associated with travel to the expert who assessed the Plaintiffs ($105), the costs of another doctor ($291.45), a portion of the interest paid on moneys borrowed by the Plaintiff's to pay legal costs of the Children's Court proceedings (amount unquantified, but less than $5,000), some photocopying and sundry like type expenses (unquantified, but no more than $1,667.35), some part of travelling expenses for contact with Anna (unquantified but no more than $200).
Taken at its highest, it would appear that the actual quantified amount is $1,426.10 and the unquantified amounts will be no more than $8,093.56.
In summary, the Plaintiffs' submissions on costs are based upon the proposition that Anna should never have been taken from her on 27 April 2009, because:
(a) there was, then, no current serious risk of harm;
(b) there was no evidence that, then, Ms Wilson was suffering OCD, which might have affected the safety and/or welfare of the child;
(c) there was no evidence that, then, the child was living in a domestic violent situation that might affect the safety and/or welfare of the child;
(d) the child had been removed relying upon what was described by her as "an emergency power of removal" when there was not, in fact, any emergency.
However, the more cogent basis of her application is, or should have been, that the Plaintiffs were successful before Palmer J in the proceedings. As was said in Oshlack v Richmond River Council (1998) 193 CLR 72 by McHugh J at [66] (Brennan CJ concurring):
"By far the most important factor which courts have viewed as guiding the exercise of the costs discretion is the result of the litigation. A successful litigant is generally entitled to an award of costs."
As I have noted, the case before Palmer J related to whether it was in Anna's best interests that she should be returned to Ms Wilson. It was that issue which his Honour was required to, and did, determine.
The Plaintiffs placed reliance on Re Georgia and Luke (No 2) [2008] NSWSC 1387. However, that was a case in which Palmer J found at [74] there was:
"a gross abuse of power on the part of the DOCS officers concerned. The result has been to remove young children from the care of good and nurturing parents for the last twelve weeks. The insistence by the DOCS officers that the Children's Court proceedings continue on their course and the children remain in custody pending their conclusion aggravates the abuse of power already perpetrated."
The reasons for Judgment in that case, in any event, make no reference to the costs of the Supreme Court proceedings. (In Re Georgia and Luke [2008] NSWSC 1277, which involved the summary dismissal of earlier proceedings brought by the parents of the children involved in both those cases, resulted in no order as to costs being made against the parents who were unsuccessful.)
Even without that type of criticism of the Defendant, in the present case, the Plaintiffs say that his Honour's conclusion was, for them, an exoneration of an allegation of some severity. They were entitled to, and did, deny that allegation. It is submitted that doing so successfully should count as an important factor in the exercise of the court's discretion.
In the supplementary written submissions made by the Plaintiffs, the first Plaintiff correctly pointed out, that the case brought by them was not an appeal.
Counsel for the Defendant made some general observations about the inappropriateness of making a costs order in a case such as this. In summary, these were:
(a) The Care Act provides, by s 88, that the Children's Court cannot make an order for costs in care proceedings unless there are exceptional circumstances that justify it doing so.
(b) The nature of the proceedings before Palmer J require the same principle to be invoked (as it would have been if the matter had gone to the District Court as an appeal).
(c) No costs orders should be made in the present case, because this is a "child protection matter" involving the determination of the allocation of parental responsibility for a child.
(d) In view of Ms Wilson's continuous failure, until recently, to comply with the directions made, costs should not be ordered as a matter of discretion.
Counsel also pointed to his Honour's conclusion in [3] set out above, which, so it was submitted, demonstrated that the Defendant was not wholly at fault in the events which resulted in the proceedings in this court continuing. This, and other paragraphs of the reasons, suggested no disapprobation of the way the Defendant, its servants or agents, had behaved in relation to Anna or the Plaintiffs.
It was also submitted that even if a costs order were made in the Plaintiffs' favour, any costs order could not include costs and disbursements incurred in the Children's Court proceedings, as these were not costs of the Supreme Court proceedings.
Part of the costs and disbursements referred to, which did not relate to the Children's Court, were accepted by the Defendant as being costs of the Supreme Court proceedings ($1,426.10). However, it was submitted that if these costs were allowed, or, in fact, whether any costs of the Plaintiffs were ordered to be paid by the Defendant, then the costs thrown away by the adjournment of the proceedings on 9 May 2011, should be able to be set-off.
Costs - The Statutory Framework
Section 98(1) of the Civil Procedure Act 2005 provides that subject to rules of court and to that, or any other, Act, costs are in the discretion of the court; that the court has full power to determine by whom, to whom and to what extent costs are to be paid; and the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis. Sub-section (2) provides that a party to proceedings may not recover costs from any other party otherwise than pursuant to an order of the court.
Section 155 of the Civil Procedure Act defines "proceedings" as "proceedings in the Court other than criminal proceedings". Section 3 of the Civil Procedure Act defines "costs" in relation to proceedings, as meaning "costs payable in, or in relation to, the proceedings, and includes fees, disbursements, expenses and remuneration."
The Uniform Civil Procedure Rules, r 42.1 provides that subject to that Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole, or any part of, the costs.
There is nothing in the Civil Procedure Act , or in the Uniform Civil Procedure Rules, that deals, separately, with the costs of a successful litigant in person. Nor is there anything in either the Act, or the Rules, that differentiates cases involving children, or those involving the exercise of parens patriae jurisdiction of the court. In other words, neither the Civil Procedure Act, nor the Uniform Civil Procedure Rules, confers upon the Defendant any special, or general, immunity as to costs in cases such as the present one.
Whilst the court has an unfettered discretion to make whatever order it considers to be just in the circumstances, in determining the question of costs, the court should proceed, in the first instance, in the way described in rule 42.1. The starting position is that costs follow the event, so that a successful party is entitled to costs. Whether a different order, contrary to the general rule, should be made depends on the circumstances of the case viewed against the wide discretionary powers of the court, which powers should be liberally construed: State of New South Wales v Stanley [2007] NSWCA 330 (at [18]) per Hislop J (with whom Beazley JA and Tobias JJA agreed); Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373 at [8].
It is well established that an order for costs in favour of a successful party is made to compensate that party in respect of the expenditure, which that party has incurred, in the conduct of the litigation. It is not made to punish the unsuccessful party. Costs do not constitute a penalty or damages: Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534, per Mason CJ at 543 and McHugh J at 567. They are purely compensatory in nature, per Toohey J at 565.
I have considered the definition of costs in s 3 of the Civil Procedure Act . As said, the definition includes "costs payable ... in relation to the proceedings". I have considered whether those words would permit the inclusion of the costs, or some of the costs, of the Children's Court.
In my view, subject to one matter, they do not. The costs are limited to costs of the Plaintiffs in this Court, commencing with the filing of the Summons. Those costs would not cover costs in respect of the proceedings before another decision-maker that led to the Summons being filed in this court.
However, I note, in this case, that Palmer J observed:
"19 In this application I have read the material tendered in the Children's Court and I have been taken to parts of the transcript of the proceedings in that Court - all of which are in evidence."
To the extent that there were any costs of the Plaintiffs incurred in obtaining the material tendered in the Children's Court to which Palmer J was referring in this passage, then, I consider those costs would be "in relation to" the proceedings. My understanding is, however, that there were no such costs included in the Plaintiffs' estimate of costs.
If the matter proceeds to assessment, and if the Plaintiffs are able to establish that costs were incurred in obtaining evidence relied upon in the Children's Court proceedings, which evidence formed part of the material read in the Supreme Court proceedings, then those costs should be allowed.
Child Care Cases
I turn then to the question whether an order for costs should not be made because this is a child care case.
Section 247 of the Care Act preserves the Crown's parens patriae jurisdiction that is exercised through the Supreme Court: Re Frieda and Geoffrey [2009] NSWSC 133 at [43]; Re Julia [2010] NSWSC 1373 at [18]. Generally, however, the Supreme Court refuses to entertain appeals from decisions of the Children's Court in the guise of applications to this Court's inherent wardship jurisdiction, save in exceptional circumstances: see, for example, Re Victoria [2002] NSWSC 647; (2002) 29 Fam LR 157; Director-General of the Department of Community Services v Priestley [2004] NSWSC 639; Re Liam [2005] NSWSC 75; Re Frances and Benny [2005] NSWSC 1207; Re Barbara [2006] NSWSC 536; Re Elizabeth [2007] NSWSC 729; Re Alan [2008] NSWSC 379; (2008) 71 NSWLR 573; Re Georgia and Luke (No 2) ; Re Kerry [2010] NSWCA 232 at [28]; Re L [2010] NSWSC 624.
Section 91 of the Care Act provides that a party to proceedings who is dissatisfied with an order (other than an interim order) of the Children's Court may, in accordance with the rules of the District Court appeal to the District Court against the order.
Had there been an appeal to the District Court, by virtue of s 91(4) of the Care Act , that court would have been bound by that provision. That sub-section provides:
"(4) In addition to any functions and discretions that the District Court has apart from this section, the District Court has, for the purposes of hearing and disposing of an appeal, all the functions and discretions that the Children's Court has under this Chapter or Chapter 6."
Section 88 of the Care Act provides that the Children's Court cannot make an order for costs in care proceedings unless there are exceptional circumstances that justify it in doing so. What amounts to "exceptional circumstances" has been considered in different cases, both in relation to the Care Act and in relation to other statutes in which the phrase appears.
In Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290, Campbell JA at [66] analysed what amounted to "exceptional circumstances" for the purposes of r 31.18 of the Uniform Civil Procedure Rules. His Honour referred to San v Rumble (No 2) (2007) 48 MVR 492; [2007] NSWCA 259 at [59]-[69] and concluded:
"(a) Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered: R v Kelly (Edward) [1999] UKHL 4; [2000] 1 QB 198 (at 208).
(b) Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors: R v Buckland [2000] EWCA Crim 1; [2000] 1 WLR 1262; [2000] 1 All ER 907 (at 1268; 912-913).
(c) Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional: Ho v Professional Services Review Committee No 295 [2007] FCA 388 (at [26]).
(d) In deciding whether circumstances are exceptional within the meaning of a particular statutory provision, one must keep in mind the rationale of that particular statutory provision: R v Buckland (at 1268; 912-913).
(e) Beyond these general guidelines, whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case: Awa v Independent News Auckland [1996] 2 NZLR 184 (at 186)."
Examples of conduct which might, at least arguably, fall within the description of "exceptional circumstances" would include:
(i) the deliberate misleading of the court or opponents.
(ii) other misconduct or wrongful conduct.
(iii) contumelious disregard of orders of the court or the principles set out in s 93 of the Act.
(iv) the raising of baseless allegations for which the party had no reasonable belief as to their existence.
(v) the raising of false issues that bear no relation to the facts or are contrary to clearly established case law.
(vi) maintenance of proceedings solely for an ulterior motive or the undue prolongation of a case by groundless contentions.
(vii) gross negligence in the conduct of a case at least where that has led to an extensive waste of the court's time and that of other parties.
(viii) where the proceedings involve a blatant abuse of process and/or are both mischievous and misconceived.
See: Department of Community Services v SP [2006] NSWDC 168 at [35]; (2006) 4 DCLR (NSW) 113 at 122; X v Nationwide News Pty Ltd [2010] NSWDC 147 at [51].
In Sutton London BC v Davis (No. 2) [1995] 1 All ER 65, there was an appeal against a refusal by a local authority to register the respondent as a child-minder. Wilson J said:
"Where the debate surrounds the future of the child, the proceedings are partly inquisitorial and the aspiration is that in their outcome the child is the winner and indeed the only winner. The court does not wish the spectre of an order for costs to discourage those with a proper interest in the child from participating in the debate. Nor does it wish to reduce the chance of their co-operation around the future life of the child by casting one as the successful party entitled to his costs and another as the unsuccessful party obliged to pay them. The proposition applies in its fullest form to proceedings between parents and other relations; but it also applies to proceedings to which a local authority is a party. Thus, even when a local authority's application for a care order is dismissed, it is unusual to order them to pay the costs of the other parties. But the proposition is not applied where, for example, the conduct of a party has been reprehensible or the party's stance has been beyond the band of what is reasonable."
However, in Australia, policy reasons do not inhibit the making of an order for costs against a person, or body, charged with a public duty. The assumption that, otherwise, such persons or bodies might be influenced by fear of a costs order from carrying out their public duty is not only contrary to public policy, but also to authority: Latoudis v Casey and M & M v Minister of Community Welfare (1986) 43 SASR 593.
In the latter case, Olsson J, relying on the line of authority, subsequently approved by the High Court in Latoudis v Casey , found that where there was, by statute, a general power to order costs in a case involving a care application, that power should be exercised on the conventional basis. It was accepted that the Minister had acted properly in bringing care proceedings, and that the Magistrate was wrong not to have awarded costs to the successful respondent. It was not a necessary precondition to find that the Minister had acted unreasonably, improperly or maliciously.
In Oshlack v Richmond River Council , the High Court declined to disturb the judgment of the trial judge, Stein J, who had characterised the nature of the litigation as concerned with public, rather than private, rights. The High Court held that something more than the categorisation of proceedings as public interest litigation was needed before a successful defendant should be denied costs (per Gaudron and Gummow JJ at [49]).
At [90], McHugh J said:
"The possibility of adverse costs orders may well inhibit some individuals and groups from bringing cases to court which involve challenges to aspects of public law. Express recognition of this fact does not, however, mean that the courts should remove this inhibition by adopting a practice of declining to follow the usual order as to costs in cases of "public interest litigation". Whether or not one regards a particular applicant's actions as well-intentioned and striving, albeit unsuccessfully, to serve some perceived public interest, the respondent still faces real costs from having to defend the proceedings successfully. The applicant had a choice as to whether or not to be a party to the relevant litigation. The respondent typically had no such choice. The legislature has chosen not to protect such applicants from the effects of adverse costs orders, whether by an express statutory exemption or the creation of some form of applicants' costs fund130. In such circumstances, one may well feel some sympathy for the plight of the unsuccessful applicant. But sympathy is not a legitimate basis to deprive a successful party of his or her costs."
At [92], he added:
"[92] Nor is the status of the respondent as a public authority presently relevant. The law judges persons by their conduct not their identity. In the exercise of the costs discretion, all persons are entitled to be treated equally and in accordance with traditional principle. The fact that a successful respondent is a public authority should not make a court less inclined to award costs in its favour. Gone are the days when one could sensibly speak of a public authority having "available to them almost unlimited public funds." Moreover, if costs awards are not made in favour of successful respondents such as the Council, the public services which those authorities provide must be adversely affected. Every irrecoverable dollar spent on litigation is one dollar less to spend on the services that public authorities do and ought to provide. Often enough the services that will be reduced will be those that favour the politically weak - children, the unemployed, the disabled and the aged. Such results cannot be in the public interest."
There is no reason why the principle stated should not apply equally when the public authority is the unsuccessful Defendant.
Kirby J said (at [134]):
"Courts, while sometimes taking the legitimate pursuit of public interest into account, have also emphasised, rightly in my view, that litigants espousing the public interest are not thereby granted an immunity from costs or a "free kick" in litigation."
In A and B v Director of Family Services (1997) 138 FLR 51, Higgins J, after dealing with the cases referred to above, said:
"I have to say that, whilst I can accept the reasoning which would support the view that there should ordinarily be no costs order as between parents in a case concerning the welfare of their child in the absence of unreasonable, improper or malicious behaviour, it is difficult to accept that the same policy reasons should inhibit the making of an order for costs against a person or body charged with a public duty. The assumption that otherwise such persons or bodies might be influenced by fear of a costs order from carrying out their public duty is not only contrary to public policy but also to authority, see Latoudis v Casey and M & M v Minister of Community Welfare .
Indeed, it is my view that the public interest is better served by creating an expectation that, if parents do take part in care proceedings brought by a public authority or officer, then, if they do so reasonably and responsibly, and have acted otherwise reasonably and responsibly, they will have the benefit of a costs order. Costs reasonably and responsibly incurred by parents should ordinarily be borne by the public as part of the cost of administering the child welfare system. That system should permit parents to participate without being discouraged either by fear of a costs order if unsuccessful or of being considerably out of pocket even if successful. In other words, the policy considerations which led this Court in McEwen v Seily to conclude that justice was better served if a successful criminal defendant was ordinarily given the benefit of a costs order are equally applicable to care proceedings brought by a public official such as the respondent."
In this court, there is no need to find "exceptional circumstances" before a costs order in favour of a successful party in a child care case can be made. As written earlier, neither the Civil Procedure Act , nor the Uniform Civil Procedure Rules provides for such a requirement. The general theory of costs relies on the result of the litigation: if one is successful, one is entitled to expect an order for costs.
However, as a matter of discretion in determining who is to bear the burden of costs, it is necessary to consider the nature of the proceedings, the conduct of the parties and the findings of his Honour.
Whilst there was no criticism of any of the witnesses of the Defendant as having lacked bona fides, it does not follow, merely because the Defendant was acting in this way, that those persons whose rights were vindicated should be deprived of the ordinary protection of a costs order in respect of their costs in the event the claims made against them prove unfounded.
Furthermore, there is no basis in public policy, or authority, which requires me to find some conduct, on the part of the Defendant, which justifies the making of a costs order in favour of the successful Plaintiffs in a case such as this. It cannot be suggested that the rule referred to above is emasculated in child-care cases.
Costs - Litigants in Person
The general rule in relation to the costs of self represented litigants has, recently, been set out by Campbell JA (with whom Tobias and Young JJA agreed) in Preston v Commissioner for Fair Trading [2011] NSWCA 40 as follows:
"Costs
[182] At the hearing Ms Mirzabegian accepted that, if the appeal were to be upheld, it would be appropriate to make in favour of the Appellant an order for costs of the limited type that can be made in favour of a self represented litigant who is not a lawyer, namely for reimbursement of certain out of pocket expenses. The Appellant did not seek any more extensive costs order, or argue in favour of any particular type of costs order. After the hearing, in response to a question asked by the bench during the hearing, and a suggestion that this was "somewhat of a test case", Ms Mirzabegian sent a note stating that she was instructed that, if the appeal were to be dismissed, the Commissioner would not seek costs against the Appellant. It is the former alternative that has become applicable.
[183] It has been held, under a previous statutory regime authorising the making of costs orders, that a litigant in person who is not a lawyer is not entitled to receive an order for costs to compensate him for time spent in preparing and conducting his case: Cachia v Hanes (1994) 179 CLR 403. However a self-represented litigant who is not a lawyer can recover an indemnity for at least some out-of-pocket expenses actually and reasonably incurred: Secretary, Department of Foreign Affairs v Boswell (No 2) (1992) 39 FCR 288; Lawrence v Nikolaidis [2003] NSWCA 129 ; (2003) 57 NSWLR 355 at [37]. It appears from Cachia v Hanes at 417 that those out-of-pocket expenses were ones of the type which would have been recoverable as disbursements if the Appellant had been legally represented. Thus such expenses include filing fees: Deva v University of Western Sydney 2008] NSWCA 137 at [82]. Though there are some English cases, and some previous Australian authority (including Boswell ) that say that under the heading of out of pocket expenses a litigant in person can get compensation for the opportunity cost of spending time on his litigation rather than on other paying work, since Cachia v Hanes those cases have not been followed in Australia: Lawrence v Nikolaidis at [37].
...
[185] There does not appear to be any relevant difference between the present statutory framework for costs orders, and the provisions that the High Court referred to in Cachia v Hanes . Thus the costs order should be the sort of order that the cases cited in [183] held was permissible."
It had been held in Cachia v Hanes (1994) 179 CLR 403 that the general rule means that a self-represented person is not entitled to recover compensation for time spent in preparing and conducting the case (at 412-414); that an order for costs is 'confined to money paid or liabilities incurred for professional legal services' (at 409), and that: 'costs are awarded by way of indemnity ... for professional legal costs actually incurred in the conduct of litigation' (at 410). Furthermore, that unless allowed for in the relevant legislation or rules, it is not permissible to treat, as a disbursement, any loss of earnings incurred by a litigant in presenting and conducting a case (at 417).
The litigant in person, normally, is entitled to out of pocket expenses actually, necessarily, and reasonably, incurred, and if the litigant qualifies as a witness, then she, or he, is entitled to the ordinary witness's fees, in addition to expenses for time actually spent giving evidence in court: Cachia v Hanes at 409, 410, 417; Lawrence v Nikolaidis & Co (2003) 57 NSWLR 355 at [35].
Expenses that have been found to be properly recoverable include court fees ( B v P [2000] FamCA 392 at [50]; transcript costs ( W (deceased) v W [2004] FamCA 319 at [41]); expenses for serving documents ( Winter v Fleeton [2002] WASCA 73 at [23]); fees for searching registers, such as an ASIC search fee ( Re Sullivan and Department of Industry, Science and Technology (1998) 51 ALD 767 at [45]); incidental expenses in relation to photocopying, postage and telephone and facsimile transmissions ( Shephard v Blueberry Farms of Australia (Corindi) Ltd (2001) 162 FLR 339 at [66]; Cary v Owners of Strata Plan No. 7241 [2002] FMCA 18).
Expenses which have been held not to be recoverable include travelling costs ( W (deceased) v W at [49]); Farquar and Farquar (No 2) [2008] FamCA 682; Cachia v Hanes at p 417); parking costs ( H v H [2006] FamCA 167 at [9]); and meals ( Maronis Holdings Ltd v Nippon Credit Australia Ltd [2002] NSWSC 838 at [14]).
It will be for the Plaintiffs to satisfy the Department as to the nature and quantum of costs. If this cannot be done by agreement, it will be for them to obtain an assessment of costs that can be enforced. One would hope, however, that this will not be necessary.
In all the circumstances of the case, I am satisfied that an order for costs in favour of the Plaintiffs should be made. Whilst his Honour could find no fault in the manager of case work in the local office of the Department, or in the Department, acting, as each did, that conclusion related to the actions which led to the original orders being made.
Similarly, even though, his Honour also held that there were repeated endeavours of the Department to engage co-operatively with Ms Wilson, the fact remains that, in this Court, the Department and the child representative continued in its, and his, opposition to Anna's return to Ms Wilson.
The foundation of the opposition of both the Department and the independent child legal representative was that there was an "unacceptable risk of harm" to Anna. Importantly, his Honour found that "Ms Wilson, throughout her frequent contact visits with Anna, displayed nothing but love and appropriate parenting skills". In addition, his Honour was "far from satisfied that, at the time of Anna's birth, Ms Wilson, was, in fact, incapable of caring for her properly".
I have also read the report dated 22 February 2011, from Tarnya Davis, Clinical and Forensic Psychologist, which noted that:
"A strength of this assessment, however, is that it was also based upon the record of many contact visits over almost two years. During those visits, on no occasion was there any evidence of relationship or interaction or parenting skills that were inconsistent with that which the writer observed. It would be highly unlikely that Ms [Wilson] and Mrs [Wilson] would be able to sustain presenting a consistently false positive image over such a long duration."
There is no suggestion that this summary of the record of the contact visits was inaccurate.
In addition, there is another matter that I find compelling in this case on the question of costs. The Department, of course, was funded in its opposition to the claims made by the Plaintiffs. The child was represented and her costs were funded also. However, the mother, and grandmother, of the child, who brought the proceedings, and who were ultimately successful, were not funded and, therefore, without an order has to meet their own expenses. This seems to me to be a relevant factor in determining the justice of the case and another in favour of making a costs order.
Costs of Adjournment
In my view, the Defendant is entitled to its costs thrown away by the adjournment on 9 May 2011. The matter had been set down for hearing on that date. No notice of any difficulty with the date was given either when the matter was set down or at any time until the day. The first Plaintiff did not attend, whereas the Defendant appeared by counsel and instructing solicitor. Attempts to maintain telephone contact were unfruitful.
There are no reasons advanced why the costs thrown away should not be paid by the Plaintiffs. I order that they pay those costs.
Set-Off of Costs
In the circumstances, the Department is ordered to pay the Plaintiffs' costs of the proceedings. Those costs should be limited to the costs that I have set out that were in relation to the Supreme Court proceedings.
The Plaintiffs are to pay the Defendant's costs of the notice of motion and the costs thrown away by the matter being adjourned on 9 May 2011.
To the extent that the costs of the Plaintiffs are assessed, or agreed, at a sum greater than the costs of the Defendant on the notice of motion, and the costs thrown away by the adjournment of 9 May 2011, as assessed, or agreed, the Defendant's costs may be set-off against the Plaintiffs' costs.
Save and except for the matters to which I have alluded in these reasons, I cannot conclude this Judgment without noting that each of the Plaintiffs has acted with courtesy and dignity on each occasion that she has appeared before me. Similarly, not only each counsel who appeared in the matter before me, but also his instructing solicitor, has acted in his, and her, dealings with the Plaintiffs, remembering that they were unrepresented and extending to them courtesy and every reasonable indulgence.
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Decision last updated: 01 July 2011
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