New South Wales District Court CITATION: SP v Department of Community Services [2006] NSWDC 168 HEARING DATE(S): 6/12/06 EX TEMPORE JUDGMENT DATE : 12/06/2006 JUDGMENT OF: Rein SC DCJ DECISION: See [53]. CATCHWORDS: Orders for costs in Children's Court - circumstances where such an order will be made LEGISLATION CITED: Children and Young Persons (Care and Protection) Act 1998 ss 8, 9, 88, 91, 93, 94 Civil Procedure Act 2005, s 56 Australian Solvent Recyclers Pty Ltd v Environment Protection Authority of NSW (2000) 110 LGERA 171 Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; 118 ALR 248 Director General of DOCS v Houdek [1999] NSWSC 1031 CASES CITED: House v R (1936) 55 CLR 499 Murray Publishers Pty Ltd v Valuer-General (1994) 84 LGERA 13 S v Minister for Youth and Community Services (1986) 23 A Crim R 113; 10 Fam LR 849 Wilson v McDougall (1987) 11 NSWLR 241 PARTIES: Department of Community Services (Appellant) SP (Respondent) FILE NUMBER(S): 3378/06 COUNSEL: Mr P Saidi (Appellant) Mr S Gardiner (Respondent) JUDGMENT 1 HIS HONOUR: By agreement I shall refer to the respondent not by his real name but by the pseudonym SP. This matter was before me yesterday and I heard argument and will now give judgment. 2 On 29 June 2006 the Senior Children's Magistrate, his Honour Mr S Mitchell, made an order that the Department of Community Services (DOCS) pay the costs of the respondent (SP), to whom I shall refer in these reasons as "the father", in the sum of $520.00 payable within 60 days. 3 The proceedings were brought by DOCS pursuant to the Children and Young Persons (Care and Protection) Act 1998 and concerned a newly born child of the father and his de facto wife, whom I shall refer to as "the mother". Interim orders have been made in relation to the child, whom I shall refer to as "HP", and the proceedings are continuing. 4 DOCS appeals from the costs order but not as to its amount. DOCS, for whom Mr P Saidi of Counsel appears in support of its appeal, relies on material relating to the history of the proceedings - see Exhibit A. The father, for whom Mr S Gardiner of Counsel appears, objects to the relevance of tabs 1 to 7 and 9 of Exhibit A. He also objects to Exhibits B and C on a similar ground, namely relevance. 5 This appeal is brought pursuant to s 91 of the Act which is in the following terms: "91 Appeals (1) A party to proceedings who is dissatisfied with an order (other than an interim order) of the Children's Court may, in accordance with the rules of the District Court, appeal to the District Court against the order. (2) An appeal is to be by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence on which the order was made, may be given on the appeal. (3) Without limiting subsection (2), the District Court may, instead of taking fresh evidence, decide to admit as evidence the transcript of proceedings before the Children's Court and any exhibit tendered during those proceedings. (4) In addition to any functions and discretions that the District Court has apart from this section, the District Court has, for the purposes of hearing and disposing of an appeal, all the functions and discretions that the Children's Court has under this Chapter or Chapter 6. (5) Without limiting the generality of subsection (4), the District Court may confirm, vary or set aside the decision of the Children's Court. (6) The decision of the District Court in respect of an appeal is taken to be the decision of the Children's Court and has effect accordingly. (7) Subject to any interlocutory order made by the District Court, an appeal does not affect the operation of the order appealed against or prevent the taking of action to implement that order. (8) The provisions of Chapter 6 apply to and in respect of the hearing of an appeal under this section in the same way as they apply to and in respect of the hearing of a care application under that Chapter.' 6 The following provisions of the Act are relied on by DOCS. Section 88 is in the following terms: "88 Costs The Children's Court cannot make an order for costs in care proceedings unless there are exceptional circumstances that justify it in doing so." 7 Also potentially relevant to this matter are ss 93 and 94, together with ss 8 and 9 of the Act: "93 General nature of proceedings (1) Proceedings before the Children's Court are not to be conducted in an adversarial manner. (2) Proceedings before the Children's Court are to be conducted with as little formality and legal technicality and form as the circumstances of the case permit. (3) The Children's Court is not bound by the rules of evidence unless, in relation to particular proceedings or particular parts of proceedings before it, the Children's Court determines that the rules of evidence, or such of those rules as are specified by the Children's Court, are to apply to those proceedings or parts. (4) In any proceedings before the Children's Court, the standard of proof is proof on the balance of probabilities. (5) Without limiting subsection (4), any requirement under this Act that the Children's Court be satisfied as to a particular matter is a requirement that the Children's Court be satisfied on the balance of probabilities. 94 Expedition and adjournments (1) All matters before the Children's Court are to proceed as expeditiously as possible in order to minimise the effect of the proceedings on the child or young person and his or her family and to finalise decisions concerning the long-term placement of the child or young person. (2) For this purpose, the Children's Court is to set a timetable for each matter taking into account the age and developmental needs of the child or young person. (3) The Children's Court may give such directions as it considers appropriate to ensure that the timetable is kept. (4) The Children's Court should avoid the granting of adjournments to the maximum extent possible and must not grant an adjournment unless it is of the opinion that: (a) it is in the best interests of the child or young person to do so, or (b) there is some other cogent or substantial reason to do so." "8 What are the objects of this Act? The objects of this Act are to provide: (a) that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, taking into account the rights, powers and duties of their parents or other persons responsible for them, and (b) that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and (c) that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment. 9 What principles are to be applied in the administration of this Act? The principles to be applied in the administration of this Act are as follows: (a) In all actions and decisions made under this Act (whether by legal or administrative process) concerning a particular child or young person, the safety, welfare and well-being of the child or young person must be the paramount consideration. In particular, the safety, welfare and well-being of a child or young person who has been removed from his or her parents are paramount over the rights of the parents. (b) Wherever a child or young person is able to form his or her own views on a matter concerning his or her safety, welfare and well-being, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child or young person and the circumstances. (c) In all actions and decisions made under this Act (whether by legal or administrative process) that significantly affect a child or young person, account must be taken of the culture, disability, language, religion and sexuality of the child or young person and, if relevant, those with parental responsibility for the child or young person. (d) In deciding what action it is necessary to take (whether by legal or administrative process) in order to protect a child or young person from harm, the course to be followed must be the least intrusive intervention in the life of the child or young person and his or her family that is consistent with the paramount concern to protect the child or young person from harm and promote the child's or young person's development. (e) If a child or young person is temporarily or permanently deprived of his or her family environment, or cannot be allowed to remain in that environment in his or her own best interests, the child or young person is entitled to special protection and assistance from the State, and his or her name, identity, language, cultural and religious ties should, as far as possible, be preserved. (f) If a child or young person is placed in out-of-home care, arrangements should be made, in a timely manner, to ensure the provision of a safe, nurturing, stable and secure environment, recognising the child or young person's circumstances and that, the younger the age of the child, the greater the need for early decisions to be made in relation to a permanent placement. (g) If a child or young person is placed in out-of-home care, the child or young person is entitled to a safe, nurturing, stable and secure environment. Unless it is contrary to his or her best interests, and taking into account the wishes of the child or young person, this will include the retention by the child or young person of relationships with people significant to the child or young person, including birth or adoptive parents, siblings, extended family, peers, family friends and community." 8 Mr Saidi submitted that the appeal is a hearing "de novo" and that there is no restriction on what can be adduced in support of the appeal. Mr Gardiner did not attack that proposition but he argued that there is no right of appeal on a costs order where the proceedings are not completed, or alternatively that this court should not as a matter of practice entertain appeals on costs matters which, after all, involve the discretion of the magistrate, particularly since the amount involved is so small. 9 He also submitted that permitting an appeal such as this to be heard would involve effectively a breach of the spirit s 56 of the Uniform Civil Procedure Act in which the overriding purpose of the Act and Rules of Court in application to civil proceedings is stated to be "to facilitate the just, quick and cheap resolution of the real issues in the proceedings". 10 Mr Saidi pointed out, and this was not challenged, that the Uniform Civil Procedure Act does not apply to proceedings under the Act. 11 In any event ss 93 and 94 set out the principles which are to guide proceedings before the Children's Court, one of which principles is that the court is to proceed as expeditiously as possible in order to minimise the effect of the proceedings on the child or young person and his or her family and to finalise decisions concerning the long term placement of the child or young person. Section 8 of the Act, I might add, makes it clear that the objects of the Act are all directed to attending to the welfare of the child or young person. 12 The only specified restriction on appeals in s 91 of the Act is from interim orders which Mr Gardiner conceded this is not. I accept that 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. 13 I am not persuaded that there is, in the legislation, any fetter on appeals from costs, but in any event in my view, even were a restrictive view to be taken on a right of appeal on costs, this would not of itself preclude review where the Children's Court has proceeded in a manner inconsistent with the appropriate exercise of discretion. 14 Mr Saidi conceded that the amount of $520 is very small but he pointed out that DOCS regards the imposition of costs in this case as involving a significant error of principle. Although no reference was made to it, the well known High Court case of House v R (1936) 55 CLR 499 makes reference to the appropriate principles where a discretion has been exercised and is being reviewed on appeal. 15 The following is stated at 504-505: "The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred." 16 In my view the evidence of what occurred in the proceedings prior to 29 June is relevant to a determination of whether the order made on 29 June was appropriate or not. Subject to one matter, the evidence of what occurred after 29 June 2006, is not, in my view, relevant to determining whether or not the costs order made on 29 June was properly made. 17 The exception is that DOCS seeks to rely on the fact that subsequently in the course of these proceedings, the father has had a need to address further evidence relied on by another party to the proceedings, which is a concrete example of the proposition that proceedings of this kind have a considerable degree of fluidity. That is certainly the case in civil litigation generally and DOCS wishes to rely on that evidence to rebut the suggestion that it could not be expected in a child care matter to be the same. 18 I think the evidence is of limited assistance in confirming what would be expected to be the case in any event. 19 I summarise from the evidence the relevant history of the proceedings: 1) Following intervention by DOCS in relation to the three natural children of the mother prior to the birth of HP, one of them being a child of her union with the father, the three children were taken into care. This occurred in the latter half of 2005. 2) When the mother had given birth to her fourth child, that is HP, DOCS moved to seek to intervene in relation to HP on the basis of the same material that had been relevant to the three other children, together with some short material relating to the condition of the mother at the time of the birth of HP and shortly after. In those earlier proceedings the father had been represented by a guardian ad litem, and although initially contested by the mother, the matter had been dealt with on an uncontested basis. 3) Having learnt of the birth of HP, and having visited mother and child, DOCS sought to make application for orders under the Act within a few days after the birth of HP. Affidavits were prepared, filed and served and the matter came before the magistrate on 11 May, five days after the birth of HP. In the course of considering the matter the learned magistrate said at T5-6 11/05/06 tab 9 Exhibit A: "I am alive to the fact that you will have very significant difficulties in doing much better than you have already done, and yet some decision and an accurate one at that has to be taken in relation to this matter. It may well that, though it's far from ideal, in the nature of things that it might not be possible to do other than rely on the earlier proceeding. I get annoyed when the Director General doesn't even try to comply with the rules of evidence. This isn't one of those cases. The Director General has put in an affidavit which is complete and thoughtful, and its defects are defects forced on him by the circumstances so I am not likely to get very cross, but do your best because the better the evidence, the better the court and the better the work we do." Those comments seem to be addressed to Mr Herridge who was appearing for DOCS on that occasion. 4) The affidavit in question is an affidavit of Ava Mihaljevic of 10 May 2006 and it is found at tab 2 Exhibit A. It dealt with the condition of the mother when visited in hospital. It extracted significant portions of a report of Ms Sandra Latash (apparently a departmental officer) and file notes. It also made reference to a clinician's report (see paragraph 4) and it made reference to a psychiatric report (paragraph 3). 5) The matter was first dealt with in the Court on 11 May and when it came before the Children's Court on that occasion, the father appeared in person. On 8 June 2006 the matter was before the court: see Exhibit B. On that occasion Dr Samra appeared for DOCS, Mr Braine for the child, Ms Horn for the mother and Mr McLachlan for the father. 6) The father and the other parties were to file any affidavit in opposition but it had done so: see Exhibit B T1.54-57. Mr McLachlan sought extra time within which to do this and was given that opportunity. No mention was made of any difficulty with the material served, nor was any reference made to Practice Direction 22 Rule 16.4, which is in the following terms: "Where an affidavit contains or annexes an extract from a document, it shall be a fair extract and the document shall be available for inspection by the court or another party at the direction of a Childrens Magistrate or Childrens Registrar." 7) On 14 June 2006 the father swore an affidavit in which he noted that he did not currently hold copies of the reports referred to in Ms Mihaljevic's affidavit and could not comment on the assertions in those paragraphs (see Tab 4 of Exhibit A, para 3(a), 3(b) and 3(h) of the father's affidavit of 14 June 2006). 8) On 15 June when the matter was before the Children's Court (see Exhibit A Tab 10), Mr McLachlan again appeared for the father, Mr Braine for the child and Dr Samra for DOCS. Ms Connolly appeared for the mother but indicated that she would be seeking to be excused. Mr McLachlan on that occasion indicated to the court that his client had not been a party to the earlier proceedings (see T2 15/06/06). He said that he was instructed that his client had not consented to orders made in those earlier proceedings. He asserted that his client had sought to address on each and every one of the allegations deposed to in the affidavit relied on by DOCS but the Director General, he said, "selectively quoted from earlier material that I don't have and the father doesn't have because that is in the possession of the guardian and Mr Parkinson who acted for the guardian" (see T2.50). 9) Mr McLachlan on that occasion, however, said that he was happy for the case to run on the current material relied on by DOCS. Mr Braine said he was not. Dr Samra asked for a week to consider the position of the Department (see also T3.49-54). 10) The learned Magistrate was critical on that occasion of the Director General who, he said, "is under an obligation to file his material at the beginning not half way through the proceedings" (see T3.55-57). 20 Dr Samra sought leave to file material that had been filed in the previous proceedings. His Honour said this (lines 4-14): "You haven't got that leave. The Act requires you, doesn't it, to put your evidence on. I'm trying to find out when I can hear this matter and I've got no idea what you're going to file. You can have a week doctor certainly to think about and file whatever you're going to file, but everyone is entitled to know, it's just a waste of time. I've dragged everyone here requiring the father to file his defence so to speak, and now I'm told that it mightn't be adequate because the facts in issue might be expanded by the department. If someone asks me for an order for costs they would be on very strong ground I reckon." 21 Mr McLachlan then gave notice that he would be making an application because: "I've expended my grant on the question of establishment by filing the affidavit I have and I have to give notice because I am obliged to by the Legal Aid Commission." 22 On the same page his Honour said the following: "Now we're told that there might be more up the Director Generals' sleeve which obviously hasn't been answered because it hasn't been put, so we've going to have to withdraw and start again. In my respectful submission, if that's not exceptional I don't know what is because it's not the way in which the Director General habitually conducts his litigation. He is model litigant and one expects him to file his material before everyone is asked to respond to it. I reserve the costs of the parties' costs of today." 23 Leave was granted to the Director General to file and serve any material re "establishment", that is the need for care, by 22 June and a response to be provided by 29 June. 24 DOCS did on 22 June serve further material, being all of the reports quoted from or summarised in the Mihaljevic affidavit. 25 On 29 June the learned Magistrate imposed the costs order in question after hearing argument. He rejected further submission that any costs order should await the end of the proceedings. 26 The learned Magistrate did not give a formal judgment on costs but indicated that: "For reasons which have been expressed in arguendo and taking into account the material contained in Mr McLachlan's affidavit and the annexures thereto I think that the circumstances are exceptional and I note that there is no exception taken to the question of costs sought and therefore I order the Director General to pay the father's costs in the sum of $520, payable within sixty days." 27 The reference to the annexures was a reference to the reports served by DOCS on 22 June. 28 The reasons for judgment which emerge from the transcript prior to the reference to judgment that I have just adverted to, appear to be these following matters: (i)That Mr McLachlan's time had been wasted. (ii)That Mr McLachlan had to be paid by someone because "he's not running a charity". (iii)That DOCS wanted to file additional material and any extra effort on the part of Mr McLachlan was something for which the Department was responsible. (iv)That the Department or DOCS should have served all of its material on the father and other respondents at the commencement of proceedings. (v)That the father's solicitor was presented with a whole lot of extra material that was relevant with which he did not have time to deal. (vi)That these matters constituted exceptional circumstances. 29 Mr Saidi drew my attention to the dictionary definition of "exceptional" and cases on exceptional circumstances in other contexts. I think these are of little assistance. The phrase "exceptional circumstances" used in s 88 is very context dependent, and since context is paramount the court must consider what the section means in the context of costs orders, particularly having regard to any other aspects of the legislation which may throw light on the legislative purpose. 30 I accept Mr Saidi's submission that the objects of the Act (see ss 8, 9) and particularly s 93, which emphasise that the proceedings are "not to be conducted in an adversarial manner and are conducted with as little formality and legal technicality and form as the circumstances of the case permit", and the fact that the court is not bound by rules of evidence unless the court determines that they are to apply, all point to a framework quite different from that which is the case with normal litigation. 31 In prior legislation dealing with child care there was no express restriction on costs being awarded, but as Wilson v McDougall (1987) 11 NSWLR 241 per Newman J at 245 and S v Minister for Youth and Community Services (1986) 23 A Crim R 113; 10 Fam LR 849, cited in Wilson, make clear, there was a general approach that the circumstances, even then, for making a costs order were limited. 32 I have drawn the attention of the parties to Chapter 8 of Mr Dal Pont's book "Law of Costs" published by LexisNexis Butterworths, 2003, in which he discusses in paras 817-866 the situations in which in civil litigation the normal costs order, ie that the successful party is entitled to his or her costs, will be replaced by an order that the successful party not obtain his or costs, or even that the successful party be required to pay the unsuccessful party's costs. 33 I also made reference to the case of Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; 118 ALR 248 in which Sheppard J described the categories of case in which the discretion may be exercised, although making it clear that those categories were not closed. He said as follows: "I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud (both referred to by Woodward J in Fountain and also by Gummow J in Thors v Weekes (1989) 92 ALR 131 at 152 evidence of particular misconduct that causes loss of time to the court and to other parties (French J in Tetijo ); the fact that the proceedings were commenced or continued for some ulterior motive (Davies J in Ragata ) or in wilful disregard of known facts or clearly established law (Woodward J in Fountain and French J in J-Corp ); the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (Davies J in Ragata ); an imprudent refusal of an offer to compromise (eg Messiter v Hutchinson (1987) 10 NSWLR 525; Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 at 724 (Court of Appeal); Crisp v Kent (SC(NSW)(CA), 27 Sept 1993, unreported) and an award of costs on an indemnity basis against a contemnor (eg Megarry V-C in EMI Records ). Other categories of cases are to be found in the reports. Yet others to arise in the future will have different features about them which may justify an order for costs on the indemnity basis. The question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis." 34 Mr Dal Pont also makes reference in that chapter to cases dealing with the practice note in the Land and Environment Court. The validity of the practice note itself came under scrutiny but the cases are none the less of some assistance. 35 Some guidance can be gained from those cases as to the meaning of exceptional circumstances, and I would summarise these points as follows, relying heavily upon the text of Mr Dal Pont's book: 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. 36 The following matters are, I think, the types of matters which would or at least arguably might fall within the description of exceptional circumstances for the purposes of s 88 of the Act: 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. 37 Some other matters such as unsustained allegations of fraud are unlikely to arise in proceedings in the child care jurisdiction and I have made reference to the fact that in another context it was noted that the categories of conduct are not closed, but nevertheless there is a theme or flavour about these categories that I have already outlined as falling within the ambit, in my view, of s 88. 38 Since refusal of an order for costs of a successful party is less draconian than an order that the successful party pay the unsuccessful parties' costs, there are obviously questions of degree involved and I do not think that the test of "exceptional circumstances" is as high as that for an order that a successful party pay the unsuccessful parties' costs. I do not think it is necessary in this case to embark upon some fine analysis of the difference between what a court would require for indemnity costs as opposed to an order that a successful party not have its costs, or that a successful party pay the unsuccessful parties' costs, and whether exceptional circumstances is precisely analogous to one or the other. 39 In my view there is nothing here which would warrant a finding of exceptional circumstances and hence imposition of a costs order on DOCS, and for the following reasons. 1) The Department started proceedings in a situation of urgency, that is the birth of the fourth child to a woman who had already but a few months earlier consented, along with the father/stepfather (through a guardian), to their three children going into care. 2) The form of the DOCS' evidence was not the subject of criticism by the learned Magistrate, but the subject of some praise. 3) There was a very real prospect that the consent of mother and father to child being placed in care would be forthcoming. 4) It was not at all clear whether the rules of evidence would apply. 5) There was no request for the reports from which quotations had been taken by the solicitor for the father, notwithstanding that he was aware that his client did not have them; he did not do so on 8 June when he appeared for the father, nor did he do so in his letter of the following day when he wrote to the Department. He did not at any time seek to avail himself of Part 16.4 of the practice note to which I have earlier referred. 40 I reject Mr Gardiner's submission that there was an implicit request for the reports in his instructing solicitor's letters of 9 June and 14 June 2006, respectively annexures A and B to Mr McLachlan's affidavit of 28 June 2006. Not only is there no such request, express or implied, but it is inconsistent with Mr Gardiner's submission that it was not incumbent on his solicitor to seek out copies of the material. 41 In my view it was incumbent on Mr McLachlan to do just that in any event in the circumstances of this case, that is, he, knowing that his client had been a party to the earlier proceedings and aware of the existence of those reports, and even more so when he wanted to assert as he did in court on 15 June without the benefit of having seen the reports, that Ms Mihaljevic had "selectively quoted" from the reports. The Department until that time was entitled to assume that the father had copies or at least access to all of the reports that had been relied on in the earlier proceedings. 42 In my view when the father's affidavit made clear that he would not be responding to the reports used in the earlier proceedings because he did not have them (see the affidavit of 14 June 2006), coupled with Mr McLachlan's indication on 15 June that there were deficiencies in the affidavit relied on by the Department, and yet he was willing to proceed with the hearing of the case on an urgent basis, if the Department would be serving no further evidence, then it was prudent for DOCS to seek to serve the originals of the material from which quotations had been excerpted. 43 The Department then served on the father's solicitors all of the reports of which mention had been made in the earlier reports and at the mention of the matter on 11 May, within the time ordered by the court. 44 In my view the approach of the learned Magistrate involved a failure to take into account the following matters: 1) That absent any point of admissibility of the quoted material DOCS was content to proceed on the basis of the material it had already served. 2) The learned Magistrate's own assessment on 11 May that what had been served by DOCS was appropriate, at least for the commencement of the proceedings and the difficulties given the previous proceedings had been flagged, with no indication that the strict rules of evidence would apply. 3) That it was always open to the father's solicitor to seek and obtain copies of documents from which extracts had been taken. DOCS had not been asked to do so either by letter or by reference to Practice Note 22 Rule 16.4. That request could have been made before Mr McLachlan embarked on drafting the father's affidavit but he chose not to do so. 4) That there had been no identification prior to 15 June of any problem with what had been served, and indeed no compliance with the order of 11 May by the father as of 8 June. 5) And further that the learned Magistrate placed unwarranted reliance on the fact that the solicitor said he would not undertake the work unless paid by Legal Aid and that this was a reason why DOCS should pay the costs of him attending to the affidavit. 6) And seemed to involve an approach that required DOCS to serve all material upon which it would seek to rely at the commencement of the proceedings, when I was informed there was no direction to that effect and which is not consistent with the learned Magistrate's own approach to the matter on 11 May. 45 The fact that the solicitor would be out of pocket because of impecuniosity of the father, if in fact he is impecunious, is not a basis for imposing an order for costs if otherwise not applicable. 46 In my view there was no factual foundation for any "wrongdoing", "misconduct" or any of the other matters to which I have referred or of that type that would fall within a class of which the items enumerated are a part. On the contrary, I think that if there is any fault to be attributed at all, it is to the solicitor for the father who refrained from seeking documents of which he was aware, refrained from taking steps that would have overcome the need to address new material after the affidavit was prepared, and who made no attempt prior to 15 June to make clear an objection to the material served. 47 Mr Gardiner relied on the case of Director General of DOCS v Houdek [1999] NSWSC 1031 in which Bell J refused to make a declaration that an order for costs made by a Magistrate exercising jurisdiction under the 1987 Act was void or that he had no jurisdiction to make such an order. The case was not concerned with the current Act and it had no comparable section to s 88. Nevertheless, the case provides some guidance as to what might be regarded as appropriate situations in which a costs order may be made, and Mr Saidi conceded that the facts of that case would justify the imposition of a costs order under s 88. 48 The facts of Houdek were, however, that the Department continuously failed to comply with an order of the court without explanation being provided, ignored correspondence from other parties and through its solicitor told the court something for which there was never any explanation proffered either to the Magistrate or to the Supreme Court. 49 Mr Gardiner tried to bring himself within Houdek by asserted that DOCS had ignored correspondence from his instructing solicitor (see letters attached to Mr McLachlan's affidavit of 28 June). Not only was the period short but in fact the unchallenged evidence of Dr Samra, on behalf of DOCS, was that he had answered Mr McLachlan's letter orally and had been told by Mr McLachlan that Mr McLachlan did not need a written reply. The matter was, in any event, back in court on 14 June. In my view Houdek is of no assistance to the father whatsoever. 50 It follows that in my view there arose no occasion for any finding of exceptional circumstances to justify a costs order against the Department. 51 I do not need to consider the other two arguments raised by DOCS, both of which seem to me to be without substance. 52 Mr Saidi indicated the Department would not seek costs in the event of the appeal being successful. 53 The orders which shall be made therefore are - That the order made by his Honour Senior Children's Magistrate Mitchell on 29 June 2006 that the Director General of the Department of Community Services pay the costs of SP for reading, discussing, drafting, settling and filing further affidavits in response to material filed by the Director General on or about 21 June 2006, should be set aside. HIS HONOUR: I am actually inclined to think that the appropriate order that should have been made on that occasion is that no order as to costs be made. Now it is a technical point, do either of you have any view about that? THOMAS/GARDINER: No your Honour. HIS HONOUR: Yes I think it is appropriate for it to be noted the appropriate order that should have been made was that there be no order as to costs. And in these proceedings I make no order as to the costs of this appeal. The exhibits can be returned within 28 days of today's date in the absence of an appeal. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.