New South Wales Court of Appeal CITATION: D v Director-General Department of Community Services & Ors (No 2) [2006] NSWCA 7 HEARING DATE(S): On written submissions JUDGMENT DATE: 9 February 2006 JUDGMENT OF: Hodgson JA at 1; Ipp JA at 9; Hunt AJA at 10 DECISION: No order made as to costs CATCHWORDS: PROCEDURE - COSTS - APPEAL - New hearing ordered in case concerning best interests of a child - Appellant only partly successful - No order made as to costs. LEGISLATION CITED: Legal Aid Commission Act s 42 CASES CITED: Robb v Director-General Department of Community Services [1999] NSWSC 754 D - (Appellant) PARTIES: Director-General Department of Community Services - (First Respondent) F - (Second Respondents) Kathryn Renshall, Child Representative for E - (Third Respondent) FILE NUMBER(S): CA 40119/05 Mr M W Anderson for Appellant COUNSEL: Mr G W Moore for First Respondent Ms M Falloon for Second Respondents Ms M Cleary for Third Respondent Steve O'Connor, Legal Aid Commission of NSW, Parramatta for Appellant SOLICITORS: I V Knight, Crown Solicitor, Sydney for First Respondent Colquhoun & Colquhoun, Rozelle for Second Respondents Kathryn Renshall, Sydney for Third Respondent LOWER COURT JURISDICTION: Supreme Court - Equity Division LOWER COURT FILE NUMBER(S): EDA 80080/04 LOWER COURT JUDICIAL OFFICER: Palmer J IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40119/05 ED 80080/04 HODGSON JA IPP JA HUNT AJA Thursday 9 February 2006 D. v DIRECTOR-GENERAL DEPARTMENT OF COMMUNITY SERVICES & ORS (No 2) Judgment 1 HODGSON JA: Pursuant to leave given when judgment was handed down on 22 December 2005 ([2005] NSWCA 474), D has applied for an order that her costs of appeal be paid by other parties. 2 I understand that D was legally assisted, but s.42 of the Legal Aid Commission Act requires the Court to make the same costs order as would be appropriate if D was not legally assisted. 3 In Robb v Director-General Department of Community Services [1999] NSWSC 754, at [63]-[65], Young J said this in relation to costs, in a case concerning the best interests of a child between a child's grandmother and the Department, which the grandmother lost: 63 Although I think the general principle of the successful party getting his or her costs with the unsuccessful party paying those costs does apply in this sort of case, the authorities tend to suggest that other factors also come into play. In cases between husband and wife over custody the court has often taken the view that orders against wives should often not be made. In many cases wives were put off from seeking custody merely because their husbands had more money and they would be bankrupted if they lost. On occasion the court has ordered the father should pay the costs of an application by the mother for custody in which she was unsuccessful. Often too no order was made for costs such as in Calder v Charlton (1983) 9 Fam LR 285, where both sides had made highly coloured allegations against each other, some of which succeeded and some of which did not. Again when there is a fight over wardship between two parties who are related to the child, a factor in the equation is that it is not in the child's interest to further alienate the parties by making an order for costs; Jolley v Payne (1981) 7 Fam LR 81. 64 Insofar as this was an application of an administrative law matter, the ordinary rules as to costs would seem to apply, save that there is some authority for the proposition that private citizens should not be dissuaded from taking actions against departments when something is awry for fear of having to pay costs. 65 I have wavered from side to side, but I think on balance that the plaintiff should pay two-thirds of the Department's costs. I say two-thirds because I do think that some of the material before the court and some of the investigation that went into this case really needed to be done in the interests of the child. That material includes Mary Anderson's report. I also bear in mind that at least up to 11 March there was some genuine apprehension by the plaintiff that she was not getting a fair go. I do not think that it is really expedient to say anything more than that. 4 In my opinion, the rule that costs follow the event may apply less strongly in cases where the adversarial parties act reasonably in seeking to promote the best interests of a child, as in the present case. 5 I think it is clear that no costs order should be made against the adoptive parents, who took little active part in the appeal, or against the representative of the child. 6 As between the appellant and the Department, the appellant failed to demonstrate error by the primary judge, and failed to obtain an order in her favour concerning the care of the child. She obtained a fresh hearing of the adoption application on the basis of further evidence, some filed in August 2005, and some filed in December 2005 after the hearing of the appeal. 7 Much of the costs of the appeal were incurred in relation to alleged errors by the primary judge, as to which the appellant failed. 8 For these reasons, in my opinion it is appropriate that there be no order as to the costs of the appeal. 9 IPP JA: I agree with Hodgson JA. 10 HUNT AJA: I agree with Hodgson JA. ********** 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.