Y v The Secretary, Department of Communities and Justice (No 7)
[2021] NSWDC 477
•10 September 2021
District Court
New South Wales
- Amendment notes
Medium Neutral Citation: Y v The Secretary, Department of Communities and Justice (No 7) [2021] NSWDC 477 Hearing dates: 27 August and 9 September 2021 Date of orders: 10 September 2021 Decision date: 10 September 2021 Jurisdiction: Civil Before: Judge Levy SC Decision: Pursuant to s 88 of the Children and Young Persons (Care and Protection) Act 1998 and s 98 of the Civil Procedure Act 2005, within 28 days of today’s date, the appellant is ordered to pay the costs incurred in these proceedings by the Secretary of the Department of Communities and Justice in the assessed specified gross sum fixed at $200,000 including GST.
Catchwords: COSTS – child care appeal – application by the Secretary, Department of Communities and Justice for a compensatory specified gross sum costs order against the appellant pursuant to s 88 of the Children and Young Persons (Care and Protection) Act 1998 and s 98 of the Civil Procedure Act 2005 – existence of exceptional circumstances – specified gross sum costs assessed at $200,000
Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW), s 88, s 105
Civil Procedure Act 2005 (NSW), s 56 – s 58, s 98
Cases Cited: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (2006) 236 ALR 665
Department of Family and Community Services v SM and MM [2008] NSWDC 68
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Gray v Richards (No 2) [2014] HCA 47
Keen v Telstra Corporation (No 2) [2006] FAC 930
Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48
Northern Territory v Sangare [2019] HCA 25
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Polsen v Harrison [2021] NSWCA 23
R v Buckland [2000] 1 WLR 1262; [2000] 1 All ER 907
Re. A Costs Appellant Carer (a pseudonym) v The Secretary, Department of Communities and Justice [2021] NSWDC 197
Sheborne Estate (No 2); Vanvalen v Neaves (2005) 65 NSWLR 268; [2005] NSWSC 1003
The Secretary, Department of Family and Community Services and Tyson Tanner (Costs) 2017 NSWChC 1
Y v The Secretary, Department of Communities and Justice (No 6) [2021] NSWDC 392
Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290
Category: Costs Parties: Y (Appellant father – In person)
The Secretary, Department of Communities & Justice (First respondent)
M (Second respondent mother - No appearance)Representation: Counsel:
Solicitors:
Mr M Anderson (First respondent)
The Crown Solicitor (First respondent)
File Number(s): 2020/30525 Publication restriction: Non-publication order imposing restriction on publication of names and identifying details other than litigation pseudonyms: s 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW)
Judgment
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These reasons are being delivered with urgency to finalise the final tranche proceedings in this Court that have vexed not only the appellant, but also his child. They concern a notice of motion filed on 18 August 2021 by the Secretary, Department of Communities and Justice (“DoCJ”), heard yesterday, wherein a specified gross sum costs order is sought against the appellant in a child care appeal that was dismissed on 13 August 2021: VY v The Secretary, Department of Communities and Justice (No 6) [2021] NSWDC 392. These reasons assume a familiarity with that decision, which forms the factual basis for the Secretary’s application. The appellant resists the Secretary’s motion for costs. Yesterday, his ninth application for judicial recusal was dismissed for reasons given ex tempore. That decision drew upon earlier reasons citing the applicable authorities to the same effect: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63; Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48; Polsen v Harrison [2021] NSWCA 23, at [46]-[47], [51]-[61]. The fact that I have decided the substantive proceedings against the appellant does not of itself form a proper basis for recusal. In such circumstances, a judicial officer is required by duty to exercise the jurisdiction that has been invoked, and determine the issues according to the oath taken, without fear or favour, affection or ill will. Contrary to the appellant’s understanding, the Secretary’s application for costs did not proceed upon the basis that the appellant was unsuccessful in the substantive proceedings. Instead, the application was based on the cost consequences of the inefficient, combative, non-compliant, and time-wasting manner in which the appeal was conducted by him, which resulted in the Secretary’s application for compensatory costs. In that regard, the Secretary’s written submissions drew upon the cited findings recorded in the principal judgment, as follows:
The appellant who was observed to be an intelligent man apparently with tertiary qualifications, chose to be his own representative during the proceedings in the Children’s Court and the District Court. The appellant must have chosen the course he did and which is observed and noted in the primary reasons for judgment.
The findings of the Court in the primary reasons for judgment are summarised at paragraph [3] as follows:
[3] In these proceedings the appellant’s dilatory, unhelpfully combative, provocative, at times bizarre, and later, avoidant litigation conduct, has resulted in unnecessary prolongation of the proceedings. This has had a harmful effect on the mental health of his child. In ordinary circumstances, absent the urgency for declaring the outcome, further time would have enabled the delivery of shorter reasons for decision.
Again, in the primary reasons for judgment this observation is recorded:
[18] Regrettably, as a consequence of the appellant’s self-representation, he has conducted his appeal with considerable time-wasting prolixity and incompetence, the latter description being a term he has frequently invoked in the course of the proceedings when seeking to deprecate and criticise the conduct of others, according to his perceptions.
The appellant failed to comply with multiple orders of the court for preparation of the evidence on his behalf in the appeal. It is to be recalled that the proceedings in the District Court were brought by the appellant. The Court observed in the primary reasons for judgment:
[22] In this Court, pre-hearing case management orders were made for the appellant to file and serve affidavit evidence in support of his appeal, but he did not comply with those orders, which were made on 23 March 2020, 12 May 2020, 2 June 2020 and 14 August 2020.
[23] Similar orders to the same effect were subsequently made after the hearing of the appeal had commenced, namely, on 2 December 2020, 11 January 2021, 5 February 2021, 31 March 2021 and 9 April 2021. The appellant did not comply with those orders.
The Court also found:
[35] The inordinate amount of time taken for the appeal to have reached this point has been largely due to the appellant’s wide-ranging, time-wasting disputatious attitude, his delaying tactics, whether intentional or not, and his at times provocative, bizarre, and difficult to control litigation conduct.
The factual circumstances set out in the affidavits relied upon also show that the procedural history in the Children’s Court and the District Court were unnecessarily prolonged and peppered with multiple unsuccessful applications by [the appellant].
The evidence in the proceedings it is submitted was overwhelmingly against the position of the appellant. As the Court observed:
[52] The overwhelming conclusion to emerge from the evidence is that the appellant has not adequately addressed or allayed the serious doubts and concerns that have been raised by DoCJ over his fitness to be entrusted with the parental responsibility for his daughter on grounds of her safety, welfare and well-being. The evidence shows that he is unfit to have that responsibility restored to him.
The Court also found that:
[68] Since October 2020, this is the sixth in a series of published judgments in the present appeal. The earlier interlocutory decisions in the matter have been published in the following series:
(1) Y v The Secretary, Department of Communities and Justice [2020] NSWDC 674;
(2) Y v The Secretary, Department of Communities and Justice (No 2) [2020] NSWDC 762;
(3) Y v The Secretary, Department of Communities and Justice (No 3) [2021] NSWDC 19;
(4) Y v The Secretary, Department of Communities and Justice (No 4) [2021] NSWDC 81;
(5) Y v The Secretary, Department of Communities and Justice (No 5) [2021] NSWDC 117.
[69] The series of interlocutory decisions referred to in paragraph [68] above relate to a cumulative 20 interlocutory listing days. The extent of those listings for proceedings of this kind was inordinate, and was occasioned by the appellant’s aberrant litigation conduct, which at times has amounted to litigation misconduct.
[70] The appellant’s approach to the proceedings was not in conformity with the overriding purpose of assisting to facilitate a just, quick and cheap resolution of the matters in dispute, as required by s 56 of the Civil Procedure Act 2005 (NSW).”
[References and footnotes omitted]
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Historical non-publication orders that were previously made in the substantive proceedings continue to apply and have effect: s 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“Care Act”).
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Essentially, the Secretary claims the existence of exceptional circumstances within the meaning of s 88 of the Care Act as the justificatory basis for seeking costs from the appellant. The evidence relied upon in support of the application comprise the two affidavits from Ms Leanne Spencer, solicitor, respectively affirmed on 15 July 2021 and 27 August 2021. The first of those affidavits was prepared in anticipation of the application irrespective of the outcome of the appeal. That affidavit had exhibited to it some 94 pages of itemised costs annexed to a series of 11 Tax Invoices issued by the Crown Solicitor in relation to the Secretary’s costs incurred in responding to the appellant’s proceedings. On 8 September 2021, in response to an inquiry from the Court to clarify the series of Tax Invoices relied upon, a 12th Tax Invoice was submitted. It had apparently been omitted from Ms Spencer’s 17 July 2021 affidavit. That additional invoice was also served on the appellant on 8 September 2021. The exhibits on the costs application were marked in the series Exhibits “A” to “F”. The appellant did not introduce any documentary evidence in his resistance to the Secretary’s application for costs.
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However, the appellant argued that he should not be liable for any costs incurred by the Secretary. He did not forward any written submissions as was required of him according to a timetable which had been set. At 8.27am on Saturday 4 September 2021, the appellant sent an email to the Court, seeking a change in the timetable for the submissions on costs, amongst other things. The Court had earlier set that timetable and it had been communicated to him on 19 August 201. He did not take any appropriate steps to seek to vary the timetable in the manner that would ordinarily be required. He is not naïve in matters of litigation. In his oral presentation the appellant sought to delay the closing of submissions to another date so he could make written submissions where the date for his written submissions had passed. The appellant had no persuasive excuse for any further delay. His application for an adjournment was rejected as the overall proceedings have dragged on far too long, disproportionately to what was involved with the residual costs issues. It would also place an additional burden on the Court’s resources and it would have had the effect of unreasonably delaying the finalisation of proceedings of other non-delinquent litigants: s 56 – s 58 of the Civil Procedure Act 2005; Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27. He was invited to make his submissions orally and he did so. The annexures to the 27 August 2021 affidavit of Ms Spencer, as augmented on 8 September 2021, provide satisfactory evidence that the appellant has been made adequately aware of the Secretary’s application for costs and it appears that he has chosen not to make the appropriate arrangements to provide his written submissions in a timely manner. This was consistent with the avoidant attitude he displayed towards the end of the substantive proceedings.
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Although the appellant did not have written submissions, at the hearing of the Secretary’s costs motion, he was provided with ample opportunity to make his oral submissions in opposition to the Secretary’s application for costs. His submissions frequently digressed into irrelevant matters, and he mis-used the opportunity to seek to cavil with matters that had already been decided when he knew that any remedies he might have in that regard had to be pursued in a different forum.
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Legislation that is relevant to the application for costs comprises s 88 of the Care Act. That provision requires that an applicant for costs in child care proceedings must show the existence of exceptional circumstances, or sufficiently out of the ordinary circumstances, that would justify an order for costs: Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290, at [66]-[67]. The formulation of exceptional circumstances is not prescriptive and permits for a wide range of situations that could constitute exceptional circumstances. The costs discretion conferred on the Court by that legislative provision is case dependent. It is a question to be decided in the statutory context in which it arises: R v Buckland [2000] 1 WLR 1262; [2000] 1 All ER 907. The context of the present application is that it is made in the District Court on appeal from the Children’s Court. In that context s 88 of the Care Act must be applied in conjunction with the discretionary provisions of s 98 of the Civil Procedure Act 2005. I recently considered those provisions and some related authorities in an earlier decision, where the principles there cited are also relevant to the present application: Re. A Costs Appellant Carer (a pseudonym) v The Secretary, Department of Communities and Justice [2021] NSWDC 197, at [84]-[87], namely:
A costs determination is not intended to have a punitive element. Instead, the purpose of an order for costs is to provide an indemnity to operate against the expense of litigation that should not, in justice, have been visited on the applicant who seeks a costs order.
The question of determining competing costs positions in litigation involves a broad evaluative judgment of what the justice of the case requires, as explained in Gray v Richards (No 2) [2014] HCA 47, at [2].
The most recent authority which conveniently identifies the need to consider the latter point is the decision in Northern Territory v Sangare [2019] HCA 25, at [20]-[25] which also follows Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11, at [66]-[67].
The policy consideration that applies to the consideration of a specific gross sum costs order includes a recognition that there can be a real benefit in obviating delay and obviating the need for a costly and prolonged costs assessment: Sheborne Estate (No 2); Vanvalen v Neaves (2005) 65 NSWLR 268; [2005] NSWSC 1003. To achieve that objective, it is recognised that a broad-brush discounted approach is to be taken to determining the costs payable when making a specific gross sum costs order: Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (2006) 236 ALR 665, at [122]; Keen v Telstra Corporation (No 2) [2006] FAC 930, at [5].”
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Litigation is well understood to be an inherently expensive undertaking and this can be even more so depending on the approach taken by the parties involved. That has especially been so in this instance, where the State of NSW had no effective means by which to control the extent to which it was obliged to incur reactive expenditure in the public interest in response to the appellant’s unruly approach to his appeal. The Secretary was obliged to take an active role in the litigation involving the care and protection of the appellant’s child, who was found to have been at risk of harm from him. The 94 pages of annexures to Exhibit LS-2 to the affidavit of Ms Spencer, as augmented on 8 September 2021, incorporate a series of chronologically itemised narratives identifying the detail of the legal costs incurred by the Secretary in responding to the appellant’s appeal since those costs commenced to be incurred in the appeal on 23 January 2020. The following tabulation identifies the costs in the relevant tax invoices from the Crown Solicitor to the Department of Communities and Services. The tabulation only includes fees and disbursements incurred up to 4 June 2021, and does not include work undertaken since 5 June 2021 including work in progress, which amounted to $12,783.36 to the date of Ms Spencer’s affidavit affirmed on 15 July 2021, which would result in an overall total of $270,251.60. My impression is that material properly reflects the legal work undertaken on behalf of the Secretary in connection with the appeal:
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No
Tax invoice date
Period for costs
Pages for itemisation
Amount
1.
30.04.2020
23.01.2020 to 20.03.2020
2 – 6
$7,878.10
2.
30.05.2020
18.02.2020 to 07.05.2020
7 – 13
$8,827.32
3.
26.06.2020
18.03.2020 to 02.06.2020
14 – 22
$14,420.22
4.
28.07.2020
02.01.2020 to 30.06.2020
23 – 29
$8,828.34
5.
29.10.2020
01.07.2020 to 08.10.2020
30 – 38
$11,520.24
6.
02.12.2020
11.08.2020 to 09.11.2020
40 – 50
$33,032.97
7.
17.12.2020
23.10.2020 to 03.12.2020
51 – 61
$28,187.88
8.
29.03.2021
07.12.2020 to 22.02.2021
62 – 78
$34,872.00
9.
30.03.2021
26.10.2020 to 24.02.2021
79 – 84
$32,712.31
10.
31.05.2021
07.12.2020 to 09.04.2021
85 – 90
$14,589.72
11.
30.06.2021
12.04.2021 to 01.06.2021
-
$23,283.36
12.
02.07.2021
16.03.2021 to 04.06.2021
91 – 94
$39,315.78
$257,468.24
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Of the numerous items of costs set out within those tax invoices, some discounted allowance must necessarily be made for expenses that are unrecoverable from the appellant. That must be so for two principal reasons.
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First, as a matter of public policy, as embedded within s 88 of the Care Act, the litigation of child care issues should not ordinarily be the subject of costs orders that could potentially inhibit public interest litigation concerning the welfare and well-being of children. The appellant correctly made that point in his oral argument. Secondly, some of the costs incurred by the Secretary in this appeal were in fact incurred in unexceptional circumstances, where the appellant had a statutory right to challenge the appealed decision of the Children’s Court and that right should not be fettered by the threat of a costs order absent litigation misbehaviour or delinquent conduct of the litigation. Discounting allowances must therefore be made for those factors in addition to the general impressionistic discount that must be applied when applying a broad-brush to assess a specified gross sum costs order that, by its nature and effect, obviates the need for a formal, protracted, and expensive costs assessment to determine fair and reasonable costs properly incurred.
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Following a discounting approach, in this application, it is convenient and appropriate to exclude from the consideration a number of elements within the tax invoices relied upon by the Secretary, in the following categories:
Ordinary costs of an appeal
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As the appellant’s appeal, which involved 39 listing days in this Court, would ordinarily have been heard and determined on circuit in Newcastle commencing on 26 October 2020, the costs that would have been associated with that hearing should be deducted. The appeal was listed for a 5 to 7 day hearing. I therefore discount and make allowance for a tranche of deduction for an initial 10 day hearing in favour of the appellant. That discount should extend to incorporate the appellant’s initial application for judicial recusal on the basis that albeit misguidedly, he believed that application was necessary. That approach acknowledges the right of a parent to contest childcare proceedings, including in an appeal. However, that discount should not extend to the appellant’s subsequent seven dismissed recusal applications after he had been informed of the requirements for such an application to succeed. It seems that he simply made those other applications as he must have perceived that the merits of his case may not have been shaping up as he had initially imagined.
Discount on a broad-brush approach
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After making allowance for that first tranche of discount, the remaining costs, must be further discounted according to the commonly accepted broad-brush impressionistic approach that guides specified gross sum cost orders where that approach avoids the significant cost and the delay necessarily associated with a formal costs assessment. In considering this aspect, it is plainly evident that all the itemised costs incurred by the Secretary were necessarily reactive to the litigation events that were initiated by the appellant’s unruly and unstructured presentation of his appeal, his dilatory and inefficient litigation conduct, his litigation misconduct, his failure to file his evidence, and his numerous time-wasting objections and applications. All of those matters required the Secretary to necessarily incur reactive costs in upholding the public interest concerning child safety, welfare and well-being, as was decided in the appropriately reasoned decision of the Children’s Court. The irresistible impression gained in this case is that the costs claimed by the Secretary were properly incurred, they are fair and reasonable, and they have been charged at a relatively low rate compared to what is often seen in costs disputes in modern litigation over important and difficult issues.
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Applying that approach, noting that the Secretary’s total claim of $270,251.60 was reduced to the rounded down specified gross sum of $220,000, I further round that sum down to $200,000. In arriving at that sum I have not overlooked the submission made by the appellant that he is impecunious, in debt, and will not be able to pay that sum in his lifetime. He sought to characterise the costs application as punitive in those circumstances. That submission should not be accepted. The Secretary’s application for costs is plainly compensatory in nature, as was pointed out to the appellant in the course of argument. Furthermore, even if impecuniosity was a relevant consideration, his claim of impecuniosity cannot be accepted without satisfactory evidence. He did not produce any such evidence. In light of how the substantive proceedings have unfolded, he must be taken to understand the requirement for evidence. Unsubstantiated submissions cannot be accepted in the face of controversy or dispute. Even if the appellant had proceeded with satisfactory evidence of his impecuniosity that factor would not have justified rejecting the Secretary’s application for costs once exceptional circumstances have been shown to exist.
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Many listing days in the appeal were needlessly taken up with the appellant’s time-wasting litigation misconduct. A close analysis of these events is not necessary for the purpose of considering whether exceptional circumstances existed which justify an application for an impressionistic specified gross sum for costs. The many facets of the appellant’s litigation misconduct have been sufficiently identified in the principal decision: Y v The Secretary, Department of Communities and Justice (No 6) [2021] NSWDC 392. The Secretary’s submissions relevantly drew upon those reasons and submitted a summarised portrayal of the existence of exceptional circumstances within the meaning of s 88 of the Care Act in the following formulation, which I find to be apt in every respect:
“26. It is submitted that the exceptional circumstances in this matter based upon the findings referred to previously in these submissions, are:
a) Misconduct during and wrongful conduct of the proceedings by the appellant.
b) Contumelious disregard of orders of the court and the principles set out in s 93 and s 94 of the Care Act.
c) Raising baseless allegations of false documents and accusations of misleading conduct by other parties for which the appellant had no reasonable belief as to the correctness of those allegations.
d) Raising false issues and failing to address the real issues by concentration on facts not established in the proceedings and contrary to established legal principles.
e) Maintenance of the proceedings solely for the purpose of undue prolongation of the case by groundless contentions and spurious applications including issuing oppressive subpoenas with no legitimate forensic purpose.
f) Gross negligence in the conduct of the case leading to extensive waste of court resources and public monies.
g) Maintaining proceedings that involved an abuse of process in the sense that issues were deliberately raised and there was no evidence provided by the appellant to support his case having regard to the issues in the case and his failure to comply with court directions in order to properly prepare his case.
h) The proceedings were mischievous and misconceived.
i) Extensive pejorative baseless and offensive comments about the judicial officers, witnesses and legal practitioners which show a contumelious disregard of and no respect for the legal process.”
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Each of those submitted elements apply with persuasive force to the appellant’s conduct of his appeal and in combination constitute exceptional circumstances. The appellant submitted there was a heavy burden upon a party in care proceedings to establish the existence of exceptional circumstances. This is where in such cases parents have every right to justifiably resist applications in the Children’s Court to seek to preserve family relationships, citing The Secretary, Department of Family and Community Services and Tyson Tanner (Costs) 2017 NSWChC 1, at [58], [72] and [87], following Department of Family and Community Services v SM and MM [2008] NSWDC 68, at [9]. Those principles cited by the appellant are indisputably correct. The emphasis is on the notion of justifiability. However, the appellant has misconstrued the cited heavy burden to be an impediment to making a costs order in this case. That burden is on an applicant for costs, whether heavy or otherwise, to demonstrate the threshold question of the existence of exceptional circumstances. That formulation requires a factual finding. It is not a prescriptive formulation. The existence of exceptional circumstances is case dependent and in this case it was also dependent on how the appellant conducted his appeal. The appellant conducted his appeal in an unjustifiable and an unruly manner. He also wasted time unnecessarily raising irrelevant and scandalous matters. Absent cogent and acceptable arguments from the appellant to the contrary, I therefore find that exceptional circumstances have been amply demonstrated in this case. Each of the negative time-wasting factors identified in the preceding sub-paragraphs have been repeatedly demonstrated and reflected in the appellant’s conduct of his appeal. Whilst it is true that the appellant’s conduct has led to an extensive burden on public resources, I do not base my dispositive conclusions on the costs motion on that factor, as to do so would be to make an impermissible punitive order. Instead, any order for costs in this case is required to be, and is intended to be, compensatory, and nothing more. Without doubt, the appellant’s delinquent litigation conduct in this case has caused unnecessary layers of costs to be incurred by the Secretary, as has been identified in the preceding paragraphs. The Secretary has demonstrated an entitlement to discounted compensation for those costs in view of the exceptional circumstances. Those conclusions justify the making of a specified gross sum costs order as quantified above. Accordingly, pursuant to s 88 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) and s 98 of the Civil Procedure Act 2005, within 28 days of today’s date, the appellant is ordered to pay the costs incurred in these proceedings by the Secretary of the Department of Communities and Justice, in the assessed specified sum fixed at $200,000, including GST.
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Amendments
10 September 2021 - Catchwords amendment
Decision last updated: 10 September 2021
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