Re Paul (No 2)

For reasons subsequently published as Re Paul [2023] NSWSC 1635 on 21 December 2023, orders were made on 7 December 2023 for the determination of an application to the Court in its parens patriae jurisdiction by a mother seeking orders for the return of her nine year old son, then in the custody of the Secretary of the NSW Department of Communities and Justice.

The orders made for the return of the child to the mother are summarised in an addendum to the principal reasons for judgment published on 21 December 2023, when the proceedings were last before the Court.

Since that time the Secretary has withdrawn the application he made to the Children’s Court of NSW under section 90 of the Children and Young Persons (Care and Protection) Act 1998 NSW (“the Care Act”)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

The Secretary’s section 90 application having been dismissed, the mother has applied to this Court for leave to discontinue that part of these proceedings in which she sought administrative law relief challenging the validity of orders earlier made by the Children’s Court in connection with the section 90 proceedings.

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

Implicit in the mother’s application to discontinue the administrative law claims made in her summons is a reservation of such, if any, rights the child might have against the Secretary arising from his having been taken into care by the Secretary. In draft short minutes of order she presented to the Court, she invites the Court to make a formal notation that the order for discontinuance of her administrative law claims is “without prejudice to any rights” the child may have against the Secretary. I have declined to make that formal notation because it is unnecessary to do so. If the child has any rights against the Secretary they are not affected by his mother’s discontinuance of an application for administrative law relief affecting him.

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

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

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

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

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

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

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

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

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

I am mindful, however, that:

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