CAC v Secretary, Department of Family & Community Services (No 2)

In a principal judgment published on 24 December 2014 I dismissed the plaintiff’s challenge (via an invocation of the Court’s inherent (parens patriae) jurisdiction, coupled with an application for judicial review) to the pendency of care proceedings relating to his children in the Children’s Court of NSW: see CAC v Secretary, Department of Family and Community Services [2014] NSWSC 1855.

As recorded at paragraph [128] of that judgment, I reserved to the parties an opportunity to make submissions about what, if any, costs orders should be made in the proceedings.

In paragraphs [129]-[134] of the judgment I also made some general observations about the Court’s approach to costs orders in protective proceedings.

The first and sixth defendants (respectively, the Secretary of the Department of Family and Community Services and the Minister for Family and Community Services) subsequently applied for an order that the plaintiff pay their costs in the lump sum of $7,500.

The Secretary was the plaintiff’s primary contradictor. The Minister was joined in the proceedings, on the application of the plaintiff, late in the piece. Nothing presently turns on any distinction between them. In the context of their costs application, they are in the same interest. For convenience, I refer to them jointly as “the State”.

Evidence adduced, without objection, on the hearing of the costs application was to the effect that the solicitor-client costs incurred by the State in the principal proceedings, up to and including the day preceding the hearing of the costs application, totalled $42,302.52. The immediate relevance of that figure, supported by tax invoices addressed by the Crown Solicitor’s Office to the Department of Family and Community Services, is its demonstration of a reasonable foundation for quantification of the State’s costs in the sum of $7,500.

On the hearing of the costs application, both sides of the record agreed that:

The proceedings in the Children’s Court, involving both the plaintiff and the State, are governed by section 88 of the Children and Young Persons (Care and Protection) Act 1998 NSW, which provides that an order for costs cannot be made in care proceedings unless there are exceptional circumstances justifying such an order.

That provision is not applicable to proceedings in the Supreme Court for judicial review or an exercise of the Court’s inherent, protective jurisdiction: Re Kerry (No 2) – Costs [2012] NSWCA 194 at [12]; Wilson v Department of Human Services; Re Anna (No 2) [2011] NSWSC 545 at [83]-[84] and [106]-[107].

In Re Kerry (No 2) – Costs, the Court of Appeal endorsed the approach taken by Hallen AsJ in Wilson v Department of Human Services; Re Anna (No 2) at [106]: There is no need to find “exceptional circumstances” before a costs order can be made in favour of a successful party in proceedings for relief against orders of the Children’s Court. In exercise of the Court’s discretion, upon a determination of 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 Court’s findings.

That is consistent with “the ordinary rule” in protective proceedings (articulated by Powell J in CCR v PS (No 2) (1986) 6 NSWLR 622 at 640 and elsewhere) that the Court may exercise its discretion as to costs, not by reference to a rule that “costs follow the event”, but having regard to “what, in all the circumstances, seems proper”.

In each of Director-General, Family and Community Services; Re Felicity [2012] NSWCA 272 at [43], Re Kerry (No 2) – Costs [2012] NSWCA 194 at [19] and X v The Sydney Children’s Hospitals Network (2013) 85 NSWLR 294 at 311 [78] the word “appropriate” was used as a touchstone, rather than “proper”, but no significance attaches to that difference.

In any event, the starting point is to notice, first, the Court’s plenary power to make an order for costs (Civil Procedure Act 2005 NSW, section 98) and, secondly, the general rule (embodied in the Uniform Civil Procedure Rules 2005 NSW, rule 42.1) that costs follow the event.

The Supreme Court is not a “no costs” jurisdiction. Although the Court has a wide costs jurisdiction, the general rule remains that costs follow the event, unless the Court otherwise orders. Parties to proceedings in the Court conduct litigation at their own risk as to costs.

In the protective jurisdiction, because of the purposive nature of the jurisdiction (confirmed by Marion’s Case (1992) 175 CLR 218 at 258-259) and accumulated experience, the Court may proceed on the basis that it is generally necessary, and appropriate, to ask “What, in all circumstances, seems the proper order to make in relation to costs?”

This question gives due recognition to the following factors, amongst others:

Where proceedings in the Court invoke not only the Court’s protective jurisdiction, but also its jurisdiction (presently embodied, largely, in section 69 of the Supreme Court Act NSW) to grant administrative law relief, on an application for judicial review, different considerations may apply than those dominant in purely protective proceedings. That is because there is a separately identifiable public interest element, and a more adversarial flavour, in the supervision of a statutory tribunal or public official, than there is in protective proceedings. Where the Court’s administrative law jurisdiction is invoked, there may be more scope for operation of the policy that “costs follow the event” than there is in purely protective proceedings, where the operation of the “welfare principle” militates against adversarial litigation.

That said, every case falls to be determined on its particular facts.

In these proceedings, starting from with the proposition that “costs follow the event”, but moving quickly to the question “What is the costs order which, in all the circumstances, seems proper?”, the supplementary question arises: What is meant by “proper”?

It is not necessary to attempt an exhaustive definition of that term, “proper”, or to elevate it beyond its station. The Court has to deal with a wide variety of situations, as variable as the human condition, in exercise of its protective jurisdiction, and in the supervision of the Children’s Court.

Nevertheless, in these proceedings, it might be said that costs should not follow the event if, although there is a party capable of being characterised as “the losing party” (uncontroversially, the plaintiff), that party has acted on reasonable (albeit, possibly, mistaken) grounds and has acted reasonably in the conduct of proceedings in the Court.

Here, even if broad latitude is allowed to the plaintiff, he appears to me not to have acted reasonably in either the institution, or the conduct, of the current proceedings.

In the course of the principal judgment I made findings, inter alia, to the following effect:

The first day of the final hearing of the principal proceedings (15 December 2014) was cut short by the Martin Place Siege. That necessitated the allocation of a second hearing day (22 December 2014) on an expedited basis, given the plaintiff’s anxiety that he have the benefit of an early judgment of the Court, focused as he was on an attempt to have the children returned to his care before Christmas.

Despite the importance he attached to an early determination of the proceedings, the passage of time from the hearing before Adams J (on 18 November 2014), to the first day of the hearing before me (15 December 2014) and then to the second day of hearing before me (22 December 2014) did nothing to confine the plaintiff’s case. On the contrary. It was presented in a manner that was repetitive and (to paraphrase Colquhoun v District Court of NSW [2014] NSWCA 460 at [62]) characterised by conduct involving “disproportionate disputation”.

In these circumstances, the rationale for a departure from the rule that “costs follow the event”, ultimately grounded in the purposive character of the Court’s protective jurisdiction, is not served by declining to make an order against the plaintiff, as “the losing party”, to pay costs of his principal contradictor, the State.

The fact, which I accept, that the plaintiff is impecunious is insufficient reason to displace the rule that “costs follow the event”: Director-General, Family and Community Services; Re Felicity [2012] NSWCA 272 at [41]-[43]; Re Felicity; FM v Secretary, Department of Family and Community Services (No 3) [2014] NSWCA 226 at [60]. So too is the fact that the applicant for costs is the State: cf, Oshlack v Richmond River Council (1998) 193 CLR 72 at 107 [92]; Re Kerry (No2) – Costs [2012] NSWCA 194 at [9] and [13]. The fact that the plaintiff is currently dependent on the State for his welfare provides him with no licence to pursue Supreme Court proceedings without exposure to the risk of a costs order.

The plaintiff submits that the course of proceedings in the Children’s Court since publication of the principal judgment provides a basis upon which he can, and should, be relieved of any liability for the State’s costs.

I do not exclude the possibility that, at least in some cases, it might be open to the Court to have regard to “subsequent events” in determination of a costs dispute relating to a contested final hearing. However, I do not see this as such a case.

The plaintiff places before this Court selective, incomplete evidence about developments in the Children’s Court as a foundation for inviting the Court, in effect, to review findings made in the principal judgment. In continuing to re-agitate the case he sought to make at the final hearing in December he has gone beyond a simple invitation to the Court to find that he had reasonable grounds for instituting and maintaining Supreme Court proceedings designed to circumvent the Children’s Court proceedings. If his case is making headway in the Children’s Court, that simply serves as a refutation of his case, in this Court, that he could receive no fair hearing there.

He seeks also, to draw comfort from correspondence from the solicitor for his eldest daughter proffered to the Court as something akin to a supporting submission. I have taken it into account but, as it seems to me, it adds nothing of substance to the plaintiff’s own submissions.

Even if allowance is made for the personal circumstances of the plaintiff, and of the family, during the pendency of the Children’s Court proceedings, the plaintiff appears nevertheless to have exercised a deliberate choice in the commencement of Supreme Court proceedings as a means, he hoped, of circumventing the Children’s Court. In taking that course, he exposed himself to an order for costs.

In these proceedings, there is no warrant for a departure from the rule that costs follow the event.

Accordingly, I order that the plaintiff pay the costs of the first and sixth defendants in the lump sum of $7,500.00.