KB v Burrun Dalai Corporation Inc (Costs)

I delivered the principal judgment in this matter on 25 February 2025, dismissing the Summons – KB v Burrun Dalai Corporation Inc [2025] NSWSC 103. All that remains is the question of costs.

The first defendant (Burrun Dalai) seeks its costs, relying on Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 42.1, which provides:

It argues that there is no basis to displace the presumption in the rule because:

The plaintiffs argue not only that costs should not follow the event (or that each party pay their own) but that the defendants should pay their costs. They criticise the manner in which the defendants have conducted themselves both before NCAT and in this Court, restating their complaint that the defendants acted in retaliation. They say that they made an offer to the defendants to work cooperatively and that the defendants did not attempt to strike out the Summons or make any claim for costs. They point out that the defendants did not comply with time limits. They make the point that they could not afford legal fees due to the actions of the defendants in cancelling their Working with Children Checks and that they have incurred filing fees, disbursements and out of pocket expenses exceeding $8,000. They argue that it is difficult to ascertain who was actually successful in the proceedings, whether nominally or otherwise.

Despite the fact that these are proceedings in the protective jurisdiction of the Court, UCPR r 42.1 applies. It makes no express exception taking this type of proceeding outside the ambit of the rule. Costs remain in the full discretion of the Court. The kinds of circumstances under which the presumption in the rule might be displaced are no doubt infinite. In protective matters one might anticipate the regular presence of circumstances warranting departing from the rule. This has prompted the idea that in such cases it is permissible to proceed on the basis that it is generally necessary and appropriate to ask what, in all the circumstances, is the proper order to make in relation to costs (see CCR v PS (No 2) (1986) 6 NSWLR 622 at 640 (Powell J); Re Paul (No 2) [2024] NSWSC 106 at [9] (Lindsay J)).

In CAC v Secretary, Department of Family and Community Services [2015] NSWSC 344 (citing Secretary, Department of Health and Community Services v JWB (Marion’s Case) (1992) 175 CLR 218), Lindsay J observed at [16]:

However, as Barrett JA observed in Re Kerry (No 2) (Costs) [2012] NSWCA 194 at [13]:

His Honour referred to what was said by McHugh J in Oshlack v Richmond City Council (1998) 193 CLR 72, [1998] HCA 11 at [90] and [92], which is worthy of repeating here (footnotes omitted):

This is not a no costs jurisdiction.

It seems to me that the formulation of the proper approach as “what in all the circumstances is appropriate” is an articulation of the requirement for the Court to be satisfied that there is good reason to depart from the rule in the context of protective matters because such circumstances may well be present in parens patriae matters for the reasons articulated by Lindsay J.

The plaintiffs were entirely unsuccessful.

The proceedings failed both because of the pendency of the NCAT proceedings (as defined in the principal judgment) and also because the invocation of the parens patriae jurisdiction was neither necessary nor appropriate for the protection of the children. Indeed, to have granted the relief sought had the potential to expose them to an unacceptable risk of sexual abuse. I do take into account that a final outcome in NCAT remains undetermined but in the interim, relief was not justified.

I detected no conduct of the proceedings on the part of the defendants which would warrant any departure from the rule.

In all the circumstances, the plaintiffs should pay Burrun Dalai’s costs.

The plaintiffs are to pay the first defendant’s costs as agreed or assessed.