Xx v Nationwide News Pty Ltd

[2010] NSWDC 147

CITATION:	XX v Nationwide News Pty Ltd [2010] NSWDC 147
HEARING DATE(S):	8 and 11 June 2010
JUDGMENT DATE:	11 June 2010
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	Orders: (1) These proceedings conducted in a closed court by reason of this being an appeal brought under the Children and Young Persons (Care and Protection) Act 1998 (NSW). (2) Parties’ names anonymised for JusticeLink and CaseLaw purposes. (3) Appeal allowed. (4) Order made by the Children’s Court of New South Wales on 30 November 2009 dismissing the plaintiffs’ application for costs be set aside. (5) In lieu of that order, the defendants are to pay the costs of the plaintiffs of and incidental to the application filed by the plaintiffs against the defendants in the Children’s Court of New South Wales on 17 September 2009, including but not limited to the costs of hearings on 18, 21, 28 and 30 September and 1 October 2009. (6) The defendants pay the plaintiffs’ costs of this appeal. (7) Plaintiffs’ application for indemnity costs refused. (8) There be no publication or broadcasting of any report of these proceedings (including the Orders and Judgment delivered on 11 June 2010) until the child, the subject of these proceedings, attains 25 years. (9) Order 8 does not extend to the final redacted form of the Orders and Judgment given on 11 June 2010. (10) The final redacted form of the Orders and Judgment given on 11 June 2010 not be published until Tuesday 20 July 2010. (11) The parties have liberty to restore the matter by arrangement with the Associate to Judge Gibson prior to Monday 19 July 2010 in the event that they consider it necessary to address matters relating to the redacted version of the Orders and Judgment at Order 9 above that may identify or have the capacity to identify the child, the subject of these proceedings. (12) Any further application in relation to other publications or other orders is stood over for further directions to Monday 19 July 2010 at 9:30am. Notations: (A) The Court notes the Orders and Judgment of Judge Marien SC, the President of the Children’s Court of New South Wales given on 20 May 2010.
CATCHWORDS:	COSTS - orders for costs in the Children's Court - circumstances where such an order will be made - "exceptional circumstances"
LEGISLATION CITED:	Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 7-9, 29, 88, 91, 104C and 105
CASES CITED:	Australian Solvent Recyclers Pty Ltd v Environment Protection Authority of NSW (2000) 110 LGERA 171 Awa v Independent News Auckland [1996] 2 NZLR 184 BS v Minister for Community Services (No 1339 of 2008, unreported, 5, 6 and 26 August 2008) Department of Community Services v SM [2008] NSWDC 68; (2008) 6 DCLR (NSW) 384 Ho v Professional Services Review Committee No [2007] FCA 388 Howe v Harvey [2008] VSCA 181 Joy Alleyne as independent legal representative for LC v Director General Department of Community Services (No 2) [2009] NSWDC 171 K-Generation v Liquor Licensing Court (2009) 237 CLR 501 McGuirk v University of New South Wales [2010] NSWCA 104 Murray Publishers Pty Ltd v Valuer-General (1994) 84 LGERA 13 R v Buckland [2000] 1 WLR 1262 ; [2000] 1 All ER 907 R v Kelly (Edward) [2000] 1 QB 198 R v LMW [1999] NSWSC 1111 R v West Australian Newspapers Ltd, ex parte Keating On Behalf of the Attorney-General for Western Australia (Full Court of the Supreme Court of Western Australia, 19 June 1997, Kennedy, Murray and White JJ) Russell v Russell (1976) 134 CLR 495 San v Rumble (No 2) (2007) 48 MVR 492; [2007] NSWCA 259 SP v Department of Community Services [2006] NSWDC 168 Vero Insurance v Scriven [2010] FMCA 352 Yacoub v Pilkington (Australia) [2007] NSWCA 290
PARTIES:	First Plaintiff: XX Second Plaintiff: YX First Defendant: Nationwide News Pty Ltd Second Defendant: News Digital Media Pty Ltd
FILE NUMBER(S):	5772 of 2009
COUNSEL:	Plaintiffs: Mr D McLure Defendants: Mr T Maltz
SOLICITORS:	Plaintiffs: McLachlan Thorpe Partners Defendants: Blake Dawson

Judgment

[1] The plaintiffs, by Summons Commencing an Appeal filed on 24 December 2009, appeal from a decision of Children’s Magistrate Murphy of the Children’s Court of New South Wales (“Children’s Court”) on 30 November 2009 dismissing their application for costs in respect of their successful application for non-publication orders against the defendants.

[2] This application raises issues concerning the tension between provisions in ss 9(1) and 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the Act”), which provide that the welfare of children the subject of care proceedings is paramount, and s 104C, which sets out the entitlement of the media to attend court and report on proceedings.

[3] The question for determination is whether or not “exceptional circumstances” have been established for this court, in an appeal by way of rehearing, to make a costs order pursuant to s 88 of the Act. I shall briefly identify the relevant provisions and then consider what may amount to “exceptional circumstances”.

The relevant legislative provisions

[4] These are:

(a) Sections 7-9 of the Act, which provide that the legislation is to be administered under the principle that, in any action or decision concerning a child or young person, “the safety, welfare and well-being of that child or young person are paramount” (s 9(1));

(b) Section 29(1), which contains protections for the persons making the report or providing certain information, including protection of their identity;

(c) Section 88, which warns that only in “exceptional circumstances” should the court make orders for costs in care proceedings.

(d) Section 91, which sets out the procedure for appeals by way of rehearing;

(e) Section 104C, which sets out the entitlement of the media to hear proceedings unless the court otherwise directs; and

(f) Section 105, which prohibits publication of names and what is called “identifying information”.

[5] The child in these proceedings was not named. The question of what amounts to “identifying information” is set out in s 105, which provides:

“ 105 Publication of names and identifying information

(1) The name of a child or young person:



(a) who appears, or is reasonably likely to appear, as a witness before the Children’s Court in any proceedings, or

(a1) who is involved, or is reasonably likely to be involved, in any capacity in any non-court proceedings, or

(b) with respect to whom proceedings before the Children’s Court are brought or who is reasonably likely to be the subject of proceedings before the Children’s Court, or

(c) who is, or is reasonably likely to be, mentioned or otherwise involved in any proceedings before the Children’s Court or in any non-court proceedings, or

(d) who is the subject of a report under section 24, 25, 27, 120, 121 or 122,


must not be published or broadcast in any form that may be accessible by a person in New South Wales whether the publication or broadcast occurs before any proceedings have commenced, during the proceedings or after they are disposed of.

(1A) The prohibition in subsection (1) applies to the publication or broadcast of the name of the child or young person concerned until:



(a) the child or young person attains the age of 25 years, or

(b) the child or young person dies,


whichever occurs first.

(2) A person who publishes or broadcasts the name of a child or young person in contravention of subsection (1) is guilty of an offence.

Maximum penalty: 200 penalty units or imprisonment for a period not exceeding 2 years, or both, in the case of an individual or 2,000 penalty units in the case of a corporation.

(3) Subsection (1) does not prohibit:



(a) the publication or broadcasting of an official report of the proceedings of the Children’s Court that includes the name of a child or young person the publication or broadcasting of which would otherwise be prohibited by subsection (1), or

(b) the publication or broadcasting of the name of a child or young person:



(i) in the case of a child-with the consent of the Children’s Court, or

(ii) in the case of a young person-with the consent of the young person, or

(iii) in the case of a child or young person who is under the parental responsibility of the Minister-with the consent of the Director-General if the Director-General is of the opinion that the publication or broadcasting may be seen to be to the benefit of the child or young person, or

(iv) in any case-if the child or young person has died.

(4) For the purposes of this section, a reference to the name of a child or young person includes a reference to any information, picture or other material:



(a) that identifies the child or young person, or

(b) that is likely to lead to the identification of the child or young person.


(5) The offence created by this section is an offence of strict liability.

(6) This section does not apply in relation to criminal proceedings.”

The background to this application

[6] After an application was brought for care proceedings in the Children’s Court relating to a child living with XX and YX (“the child”), articles were published in The Australian on 14 and 15 September 2009 containing very detailed information, including the notification brought under the Act, what happened when the police visited the mother, the country of origin of the mother and child, the child’s residence with XX and YX, the child’s schooling, witness statements and quotations from medical reports concerning the physical and psychiatric condition of the child. The sources of the information were identified in these articles as “court documents seen by The Australian”, a police report, a report issued after the court ordered “a psychological examination of all parties”, correspondence between the parties concerning offers to resolve the case and mediate, and statements from persons described as witnesses.

[7] On Tuesday 15 September at 9:22 am, the journalist employed by The Australian sent an email to the solicitor for one of the parties in the Children’s Court proceedings saying:

“I was this week asked to look at a case about involving the above named child in the Children’s Court.

We have published two articles on the matter, based on court documents. I understand that you represent one of the parties to the proceedings, XX and YX.

I am anxious to ensure that coverage of the case is balanced, and I am therefore asking all parties today if they would be prepared to comment on the matter, either directly, or through legal representatives.

I have some questions that I could put in writing, if that is the best option.”

[8] There was a very swift reply from the solicitors for plaintiffs in the form of letters emailed early in the afternoon, both to the journalist and to the editor in chief of The Australian. The letter gave the following advice:

“1. Both articles are in breach of Section 105 of the Children and Young Person (Care and Protection) Act 1998 NSW (“the Act”), a copy of which is enclosed for your information. The articles contain a number of key pieces of information which, taken together, are at least likely to identify the child, who is the subject of the Children’s Court proceedings. For example, people in the child’s school community are likely to have identified the child from the publication of at least the following facts about [the child and XX and YX]:

[a list of such factors was then provided]

2. Any further publication will, by reason of the publication of the articles, be understood in their context and will also constitute a breach of Section 105 of the Act.

3. The journalist appears to be in possession of certain documents from the Children’s Court proceedings, which can only have been provided to her in breach of the implied undertaking to the Court and obligations of confidentiality. For example:

[a list of these documents then followed]

4. The article contains serious allegations against [XX and YX], which they cannot redress in these circumstances, for fear of participating in a further breach.

The articles have the capacity to cause irreparable psychological damage to the child and significant embarrassment to the child within [the] school and community environment. Given your intention to contact all parties to the Children’s Court proceedings to comment on the matter, either directly or indirectly, so that you may continue to cover the case, we are instructed to request that you provide the following undertakings:



(i) That the articles will be removed from the internet by 6pm today;

(ii) That there will be no further publications in relation to the Children’s Court proceedings; and

(iii) That we be given at least 2 days’ notice of any further proposed publication in relation to the Children’s Court proceedings.


If these undertakings are not forthcoming, we have been instructed to take whatever steps are possible to prevent the continuing publication of the articles and any further publication in relation to the Children’s Court proceedings. We expect that will necessitate an application to the Court for appropriate injunctive relief.

Please confirm The Australian’s position urgently and in any event by no later than 6pm today.

Otherwise, our clients reserve their rights generally.”

[9] The journalist employed by the defendant replied at 3:38pm on Tuesday 15 September 2009 saying “Thank you kindly for your prompt reply”. There was no reply from The Australian’s editor. The next day, The Australian published a third article which consisted of fresh extracts from medical reports and what the journalist described as “further examinations of the child by two medical specialists”, including direct quotations from the text of these reports.

[10] On Friday 18 September 2009, the plaintiffs obtained an order from Magistrate Murphy of the Children’s Court ex parte for non-publication orders. The orders were served later that day. On Monday 21 September 2009 the defendants made an application to set aside the orders, which was refused.

[11] Following service of Magistrate Murphy’s orders of 18 September 2009, steps were taken by the defendants to remove the offending articles on the website maintained by the second defendant. Unfortunately, those attempts were not entirely successful and further steps had to be taken as late as 7 May 2010.

[12] When the care application came before the court for hearing on 30 September 2009, an application was made concerning whether the journalist should remain in court. In the course of refusing the application, President Marien made the following observations:

“A view was taken by Magistrate Murphy that what was contained in the articles is likely to lead to identification of the child pursuant to section 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW). I share that view. …

There is evidence before the Court that the child has been identified by the articles. …

I agree with Magistrate Murphy and believe that what has previously been published is likely to identify the child. …

I am unable to conceive of how there can be a media report of the substantive proceedings before me which cannot be linked back to prior publications. In one respect damage has already been done and I am unable to see how any future publication by News or the media generally can be disassociated with this case. I read section 104C of the Act as ordinarily the media has the right to be present and it is an exception to exclude them. In my view, the history of this matter provides an exceptional circumstance and, in my view, an extremely exceptional circumstance. …

I repeat that I regard this case as wholly exceptional, and, in exercising the discretion in section 104C I must take into account the protection of the child and the harm that the publications may have on the child’s future well being. Accordingly, I direct that the media not be present in the substantive proceedings.”

[13] I should note that, although I have set out these observations of President Marien as part of the background to these proceedings, this does not mean that I unquestioningly accept President Marien’s assessment of the facts, or his characterization of the findings of Magistrate Murphy. The defendants challenge the claim that the child was in fact identified, relying, inter alia, on the test as enunciated in R v West Australian Newspapers Ltd, ex parte Keating On Behalf of the Attorney-General for Western Australia (Full Court of the Supreme Court of Western Australia, 19 June 1997, Kennedy, Murray and White JJ) (“Keating”). I have considered this appeal by way of rehearing on the basis of the submissions as to facts and law made to me by the parties.

[14] After the proceedings there was an application by XX and YX for the costs of proceedings. On 30 November 2009 Magistrate Murphy refused the application for costs, and on 24 December 2009 XX and YX filed the Summons for Appeal that is before me for determination.

[15] Whether or not there are “exceptional circumstances” generally is a question of fact in each case: Yacoub v Pilkington (Australia) [2007] NSWCA 290 at [66]. What are the facts relied upon by the plaintiffs?

The matters raised by the plaintiffs

[16] The plaintiffs submit that the following facts and matters warrant a finding of special circumstances (written submissions, paragraph 13 (a) – (k)):

(a) The defendants published two articles in The Australian and on the internet on 14 and 15 September 2009 reporting on the proceedings which were to come before the Children’s Court, containing not only details of the easily identifiable (because unusual) living circumstances of the child and plaintiffs but also references to or quotations from:



· “Court documents” (14 September) including the statement of the child’s mother;

· A “police report” (14 September) including statements by a welfare worker;

· Court orders for a “psychological examination of all parties” (14 September);

· Direct quotations from several of the statements and references to be given by witnesses (14 September);

· Reports of what occurred during a session supervised by welfare workers (14 September);

· Quotations from a report by a “psychiatrist” (14 September);

· Information about the initiating complaint when the matter came to the attention of welfare authorities after a complaint was made to police in January 2007 (15 September);

· In addition, in the 15 September article also contained information about a mediation, including the name of the mediator, and direct quotations from a letter which the plaintiff’s written submissions identify as a “without prejudice” communication.



(b) The journalist then wrote to the solicitors for the plaintiffs on 15 September saying the newspaper had “published two articles on the matter, based on court documents” and asking, to ensure that coverage was “balanced” for the comments of “all parties today”. The plaintiffs’ solicitors wrote to the journalist alerting concerns about the explicit detail having the likelihood to cause “irreparable psychological damages to the child and significant embarrassment to the child within her school and community environment” and seeking undertakings not to publish. The journalist’s only comment was an email saying “Thank you for your prompt reply”, following which she provided a third article for publication the next day;

(c) The plaintiffs’ solicitors’ letter to the Editor in Chief of 15 September was never replied to. The following day, the third article was published;

(d) All articles were also placed on the internet, where they were easily accessible;

(e) The child was identified by other persons, including mothers of other children at the school;

(f) By reason of the extensive detail concerning the racial background, country of origin and cultural practices, as well as information about the family situation of XX and XY, the child was identified, and/or was likely to be identified, which amounted to a breach of s 105 of the Act;

(g) Despite the orders of the court for the removal of the items from the website, a number of articles remained on the site both after the orders were served and as late as 7 May 2010, when a further request for removal of the article had to be made by the solicitors for the plaintiff. The plaintiffs complain the only explanation from this is an affidavit on information and belief from a solicitor in the employ of the solicitors for the defendants; and

(h) In oral submissions, counsel for the plaintiffs noted no explanation was provided by the journalist or editor for publishing confidential material and material likely to identify the child after receipt of the 15 September 2009.

[17] The major submission, however, was that the action of the editor and journalist in ignoring the letter of 15 September 2009 meant the plaintiffs had no option other than to seek urgent relief from the Children’s Court. This failure to respond by the editor and journalist, including their effective refusal to reply to the correspondence, left the plaintiffs with no alternative. The plaintiffs submit this was unacceptable conduct from a very large media organization which employed in-house lawyers, as those lawyers could and should have advised them as to the consequences of continuing to publish. There is no evidence before the court that those in-house lawyers were consulted about the plaintiffs’ solicitors’ letter prior to the third publication.

[18] The principal issue challenged by the defendants was whether the child was likely to be identified.

Identification

[19] The defendants submit that the meaning of the notion of “identification” for the purposed of s 105 of the Act are unsettled, referring to Keating which, it is asserted, supports the application of an “ordinary reasonable reader” test to determine whether there has been a breach of legislation prohibiting publication of material which identifies a child in Children’s Court proceedings.

[20] Murray J in Keating applied a “general reader” test in terms of “the capacity for identification… by the public, rather than by private individuals who may, by reason of knowledge otherwise acquired, have a particular capacity to identify a child the subject of a report”.

[21] Does Murray J’s test mean that the child’s identity should be a matter generally known to the public? Few children have a reputation or are known outside their families, friends and schools. Murray J’s test needs to be seen in context of the facts of the case, namely a report of a young person being charged in circumstances where an earlier newspaper report, shortly after the incident but a number of weeks before charges were laid, had referred to the young person by name.

[22] The Full Court of the Supreme Court of Victoria, in Howe v Harvey [2008] VSCA 181 at [46] – [69] refused to apply the “ordinary reasonable reader or viewer test” (at [64]), albeit in another context, noting by way of obiter at [60]:

“We also note that, contrary to the approach in [ Keating ], we are inclined to think that s 26(1) would be breached if the particulars which are published are sufficient to enable those who know a child (for example, his or her school friends or neighbours) to identify him or her as the child who had been involved in court proceedings, even though a general reader would not do so.”

[23] The Court also rejected a submission that an ordinary reasonable reader test would provide greater certainty, noting its preference for approaching this question “simply as a factual issue”.

[24] The facts in this case are extraordinary. I use the word “extraordinary” because the second newspaper article (15 September), says in the opening paragraphs:

“The Australian yesterday reported on the extraordinary case, in which the couple [XX and YX] are [details of the case follow]. [Emphasis added].

[25] So extraordinary are the facts of this case that to list or otherwise refer to them would be to risk identifying the child in this judgment. I shall instead simply refer to the list of identifying factors which is set out at paragraph 13(f) of the plaintiffs’ written submissions, as the defendants did not challenge this list (although denying that they do in fact identify the child to the general public, in accordance with the test in Keating).

[26] Having regard to the identifying factors and the extensive amount of information in the newspaper articles referring to them, I consider the evidence, on any test, pointing to actual identification of the child to most if not all of the persons in his/her environment – school, suburb and social activities – to be overwhelming.

[27] Counsel for the defendants submitted that this was not a case where the child and/or his or her home identified by name and/or address, or shown in a photograph, which would be the high point of identification. I do not accept this contention. What makes a person identifiable will depend upon the facts in each case. To use an example given in oral submissions, where a child’s name and face are unknown outside the family, but that child is identifiable from what I will call “extraordinary” facts as being in the care of a celebrity, photographs of the child’s face or house are not necessary for identification purposes to the many persons who know sufficient of the “extraordinary” facts.

[28] The defendants submitted that the hearsay nature of the evidence concerning the identification of the child means it should be given little weight. In light of s 93 of the Act, I do not accept this submission.

[29] In addition, the material need only be “likely” to identify the child: s 105(4)(b). The factors of race, country of origin and social customs, if out of the ordinary, would carry considerable weight in such circumstances.

[30] The publication of material which not only was likely to, but did, identify not only the child but also the plaintiffs, is a matter relevant to the question of whether costs should be awarded.

Publishing material contrary to the implied undertaking

[31] The letter from the solicitors for the plaintiffs of 15 September 2009 specifically refers to extracts from documents being published contrary to the implied undertaking given in relation to court documents. In addition, an objection is taken to the publishing of extracts from medical reports, a “without prejudice” letter, witness statements and other court documents, in circumstances where the matter had yet to be heard.

[32] Counsel for the defendants submitted that it was not clear what the sources for these documents were. However, the sources for these documents are specifically identified in each of the publications.

[33] I note, in relation to the third publication of 16 September 2009, that it includes quotations and comments about a “report, seen by The Australian” about the child’s welfare which had led to certain action being taken.

[34] The publication of confidential information in the form of psychiatric or other reports, or of “without prejudice” correspondence, is conduct relevant to the question of whether costs should be awarded.

Subsequent conduct

[35] Subsequent to the orders made for removal of the articles from the internet, they were found to still be accessible. The affidavit of the plaintiffs’ solicitor provides details of these further publications.

[36] The affidavit of Felicity Dougherty of 7 June 2010 sets out that after the orders of Magistrate Murphy were served on 18 September 2009, a search was conducted by the in-house lawyers, who “only found the article to be available on The Australian website” (paragraph 8(b)). When another newspaper article was found by the plaintiffs’ solicitors they removed it immediately. When articles were still found on The Australian website by the solicitors for the plaintiff on 7 May 2010, they were again removed immediately. The continued appearance of these articles is blamed on a changeover from “Vignette” to “Fatwire” content management system programmes. Migration from Vignette to Fatwire occurred on 5 November 2009.

[37] How it is that these articles still remained on the defendants’ websites is, as counsel for the plaintiffs pointed out, simply not explained. A change of software does not automatically mean that content which has been removed will again become available.

[38] The defendants submitted that conduct since the orders of Magistrate Murphy was irrelevant to the matters before me. I do not accept that submission. This is an appeal by way of rehearing, and if there is further or fresh conduct of the kind which would attract the label “exceptional”, it may be taken into account by me.

[39] The defendants also submitted, concerning the orders sought in the summons, that the plaintiffs could not alter the relief sought to include a date for which a costs order had not been sought before the magistrate. I do not accept this submission. The plaintiffs are seeking the costs of their application for orders against the defendants. The precise dates for that application are matters of concern for the costs assessor, but not for me.

Opposing the non-publication orders

[40] The plaintiffs did not submit that the defendants’ conduct in opposing non-publication orders was relevant to the issue of whether the court considered there were “exceptional circumstances”. The defendants made submissions about this issue, however, so I have taken those matters into account when considering whether or not to award costs.

[41] The defendants submit that the question of whether the Children’s Court had power to make the orders in the first place was not a straightforward question, in that there is no section in the Act specifically providing power for a non-publication order, and no appellate authority confirming the power of the court to do so.

[42] I do not accept this submission. Section 15 gives the court a very broad grant of power to make such orders, including interlocutory orders, as it considers appropriate, and for the reasons explained by the Court of Appeal in McGuirk v University of New South Wales [2010] NSWCA 104, courts have power, under case management rules, to make orders of this kind (although the Court of Appeal in McGuirk, by majority, set aside the orders made by the trial judge for other reasons). The principles concerning the restrictions of open courts referred to by French CJ in K-Generation v Liquor Licensing Court (2009) 237 CLR 501 at [48] – [49] do not apply to courts where the prohibitions are intended to protect a child whose welfare is paramount, for the reasons referred to in Russell v Russell (1976) 134 CLR 495 at [10], a decision noted by French CJ at [49]. Nor do I agree that sections 104C and 105 are exhaustive; the balancing of the principle of open justice and the interests of the children (and their families) before the Children’s Court needs to be read subject to the overriding objects of the Act.

[43] I would not agree with the submission that there was scope for reasonable debate about s 15 in circumstances if, on the facts of the case, there were breaches not only of s 105 but of the implied undertaking concerning court documents and publication of “without prejudice” correspondence.

[44] The question of whether or not the power can only be enlivened in exceptional circumstances (R v LMW [1999] NSWSC 1111) where a non-publication order would prevent prejudice to the administration of justice would in any event fall away in the case of a question of breach of a statutory prohibition concerning the identification or likely identification of a child.

[45] I now consider whether the circumstances of this case are “exceptional” for the purposes of a costs order under section 88.

“Exceptional circumstances”

[46] The reluctance of courts to make costs orders at all in care proceedings is clear from the terms of section 88. In addition, as Rein DCJ stated in SP v Department of Community Services [2006] NSWDC 168 at [12]:

“… an Appeal court would be reluctant to encourage appeals on costs issues or to too readily interfere with matters of discretion in relation to costs.”

[47] These factors place a heavy burden upon a party seeking costs in care proceedings in order to establish the “exceptional circumstances” necessary.

[48] The question of what amounts to “exceptional circumstances” has received consideration not only in relation to this Act but also in relation to other statutes in which this provision is used. In Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290, Campbell JA set out at [66] an analysis of what amounted to “exceptional circumstances” for the purposes of r 31.18 of the Uniform Civil Procedure Rules 2005 (NSW), referring to San v Rumble (No 2) (2007) 48 MVR 492; [2007] NSWCA 259 at [59]–[69], which his Honour summarised as follows:

“(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) [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] 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 [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).”

[49] This analysis was approved and adopted by Garling DCJ in Department of Community Services v SM [2008] NSWDC 68; (2008) 6 DCLR (NSW) 384. At [9], Garling DCJ listed the exceptional factors which warranted the award of costs as follows:

(a) The appeal had no merit.

(b) The Magistrate made the only reasonable order available.

(c) There were no grounds to seek an appeal and no additional evidence put forward.

(d) The parents had to pay their own costs as a result of the Department’s appeal, when they had every right and justification in resisting an application “and, indeed, had to.” It was “very relevant” that the parents had to pay their own costs (at [9]).

[50] In SP v Department of Community Services [2006] NSWDC 168 at [35]; (2006) 4 DCLR (NSW) 113 at 122, Rein DCJ summarised the following as amounting to “exceptional circumstances” for the purposes of the practice note in the Land and Environment Court:

“1) Cases where circumstances are found or not found to be exceptional or not all turn on their own facts and circumstances (see Murray Publishers Pty Ltd v Valuer-General (1994) 84 LGERA 13, referred to in footnote 315).

2) Unusual circumstances do not make the circumstances exceptional. A council’s error, for example, in its dealings with the applicant are insufficient.

3) Even circumstances out of the ordinary or even appalling breakdowns or misunderstandings in communication do not, of themselves, amount to exceptional circumstances (see Australian Solvent Recyclers Pty Ltd v Environment Protection Authority of NSW (2000) 110 LGERA 171, referred to in footnote 321).

4) Refusal of counsel to act on recommendations of officers or advice of experts is not sufficient.

5) Acting upon a serious or fundamental error of fact, acting capriciously or deliberately attempting to frustrate or cause delay or expense to the applicant would be sufficient.”

[51] Rein DCJ adapted this list to provide examples of conduct which might at least arguably fall within the description of “exceptional circumstances” for the purpose of s 88 of the Act as follows at [38]:

“1) Deliberate misleading of the court or opponents.

2) Other misconduct or wrongful conduct.

3) Contumelious disregard of orders of the court or the principles set out in s 93 of the Act.

4) The raising of baseless allegations for which the party had no reasonable belief as to their existence.

5) The raising of false issues that bear no relation to the facts or are contrary to clearly established case law.

6) Maintenance of proceedings solely for an ulterior motive or the undue prolongation of a case by groundless contentions.

7) 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.

8) Where the proceedings involve a blatant abuse of process and/or are both mischievous and misconceived.”

[52] Rein DCJ upheld the appeal from the magistrates’s award of costs on the basis that he did not consider it an exceptional circumstance that a solicitor would be out of pocket because of the impecuniosity of his client. That is a very different fact situation to the present.

[53] In addition, as Goldring DCJ pointed out in Joy Alleyne as independent legal representative for LC v Director General Department of Community Services (No 2) [2009] NSWDC 171, this list set out by Rein DCJ is not exhaustive. Goldring DCJ noted that in BS v Minister for Community Services (No 1339 of 2008, unreported, 5, 6 and 26 August 2008) Robison J made an order for costs where the Department had taken an “unreasonable position” in the litigation (at [11]).

[54] In all of the above cases, the parties against whom costs orders were sought were parties to the litigation, namely the adult parties or the relevant government department.

[55] The factors which in my view were capable of amounting to exceptional circumstances are:

(a) As was the case in Department of Community Services v SM , this was an application that the plaintiffs “had to” bring ( Department of Community Services v SM at [9]), not only because the child was likely to, and had been, identified, but because there was a further publication in the face of a request not to do so, or to give the plaintiffs advance notice.

(b) There were breaches of the implied undertaking as to documents obtained in the litigation process, including correspondence about settlement. This would be capable of amounting to “wrongful conduct” ( SP v Department of Community Services at [36]).

(c) There was disregard for the principles set out in the Act. In SP v Department of Community Services , there is a reference at (3) to section 93 of the Act. That section deals with the standard of proof and establishment of evidence. It is not clear to me why failure to contumelious disregard for this provision is more serious than, for example, contumelious disregard to the principles in section 9 of the Act. Whether by reason of s 9 or s 93, given the importance of protection of children from identification, publication of material identifying not only the child but the parties in a series of articles discussing the facts in such identifying detail, and calling these facts “extraordinary”, amounts to contumelious disregard.

(d) The continued presence of articles about the case on the defendants’ website as late as 7 May 2010 could amount to negligence of the kind referred to in SP v Department of Community Services at [36], particularly since this occurred more than once.

[56] In my view the approach of the learned Magistrate involved a failure to take, or take sufficiently into account, these matters. The basis for refusal of costs was that there was “no behaviour” of the defendants which might arguably fall within the description of “exceptional circumstances” set out by Rein DCJ in SP v Department of Community Services. Not only do I consider this to be incorrect, on the facts of this case, but those categories are not exhaustive, for the reasons explained by Goldring DCJ in Joy Alleyne as independent legal representative for LC v Director General Department of Community Services (No 2) [2009] NSWDC 171 at [11].

[57] While the circumstances in which the child was identifiable are an important factor concerning costs, what makes these circumstances “exceptional” are the defendants’ failure to answer the letter of the solicitors for the plaintiff of 15 September 2009 and their decision to go ahead and publish a third article on 16 September 2009 despite having the relevant provisions of the Act explained carefully and concisely to them. The learned Magistrate does not refer to this at all in his reasons for refusal of the order (at pages 6 – 7 of the judgment), or to the other matters set out above which I have found warrant the making of a costs order, or expose his reasoning for concluding that there was “no behaviour” of the defendants warranting a costs order.

[58] I have concluded, for all those reasons, that the defendants should pay the costs of XX and YX, the plaintiffs. Should those costs be paid on an indemnity basis?

Indemnity Costs

[59] I am not aware of there being any case where indemnity costs have been awarded in care proceedings. There is no provision in the Act for awarding indemnity costs, but that does not necessarily mean that indemnity costs cannot be awarded: see, by analogy, Vero Insurance v Scriven [2010] FMCA 352 at [45].

[60] Neither side provided written submissions on the matter, and the draft orders prepared by the plaintiffs at the end of their written submissions seek an order for costs only. Revised draft orders were handed up during submissions.

[61] Orders for indemnity costs should be made sparingly, where there has been conduct warranting such an order. There is nothing in the conduct of the defendants in relation to the hearing before the Children’s Court, or this court, warranting such an order. The circumstances in which the publications remained on the website, while regrettable, were oversights. Accordingly the application for indemnity costs is refused.

(1) These proceedings conducted in a closed court by reason of this being an appeal brought under the Children and Young Persons (Care and Protection) Act 1998 (NSW).
(2) Parties’ names anonymised for JusticeLink and CaseLaw purposes.
(3) Appeal allowed.
(4) Order made by the Children’s Court of New South Wales on 30 November 2009 dismissing the plaintiffs’ application for costs be set aside.
(5) In lieu of that order, the defendants are to pay the costs of the plaintiffs of and incidental to the application filed by the plaintiffs against the defendants in the Children’s Court of New South Wales on 17 September 2009, including but not limited to the costs of hearings on 18, 21, 28 and 30 September and 1 October 2009.
(6) The defendants pay the plaintiffs’ costs of this appeal.
(7) Plaintiffs’ application for indemnity costs refused.
(8) There be no publication or broadcasting of any report of these proceedings (including the Orders and Judgment delivered on 11 June 2010) until the child, the subject of these proceedings, attains 25 years.
(9) Order 8 does not extend to the final redacted form of the Orders and Judgment given on 11 June 2010.
(10) The final redacted form of the Orders and Judgment given on 11 June 2010 not be published until Tuesday 20 July 2010.
(11) The parties have liberty to restore the matter by arrangement with the Associate to Judge Gibson prior to Monday 19 July 2010 in the event that they consider it necessary to address matters relating to the redacted version of the Orders and Judgment at Order 9 above that may identify or have the capacity to identify the child, the subject of these proceedings.
(12) Any further application in relation to other publications or other orders is stood over for further directions to Monday 19 July 2010 at 9:30am.

(A) The Court notes the Orders and Judgment of Judge Marien SC, the President of the Children’s Court of New South Wales given on 20 May 2010.

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