Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Re Kerry (No 2) - Costs [2012] NSWCA 194 Hearing dates: On the papers Decision date: 28 June 2012 Before: Barrett JA (at [1]), Tobias AJA (at [21]), Schmidt J (at [22]) Decision: The Court orders that the first and second plaintiffs pay the first and second defendants' costs of the prerogative relief proceedings in this Court from 18 November 2011 to date and the Court notes that: (a)the summons was filed in these proceedings by the first plaintiff on 18 November 2011; and (b)the costs of the District Court proceedings before Balla DCJ are not included in the order. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: COSTS - departing from the general rule - care proceedings in respect of child - application for prerogative relief in respect of a decision of the District Court upon appeal from the Children's Court - application made by mother and grandmother defended by Director-General of Family and Community Services - application unsuccessful - respondent seeks costs - whether any special factor warrants departure from the general rule Legislation Cited: Children and Young Persons (Care and Protection) Act 1998, ss 88, 91 Civil Procedure Act 2005, s 98 Supreme Court Act 1970, s 69 Uniform Civil Procedure Rules 2005, rule 42.1 Cases Cited: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Re Alan [2008] NSWSC 379; (2008) 71 NSWLR 573 Re Georgia and Luke [2008] NSWSC 1277 Re Kerry (No 2) [2012] NSWCA 127 Wilson v Department of Human Services; re Anna (No 2) [2011] NSWSC 545 Category: Costs Parties: Grandmother - first plaintiff Mother - second plaintiff Minister for Family and Community Services - first defendant Director-General of the Department of Family and Community Services - second defendant District Court of New South Wales - Third defendant Aunt - fourth defendant Father - fifth defendant Child - sixth defendant Representation: Mr P R Glissan - first plaintiff In person - second plaintiff Ms M T England - first and second defendants In person - first plaintiff In person - second plaintiff I V Knight, Crown Solicitor - first and second defendants File Number(s): 2012/117463 Judgment 1BARRETT JA: In accordance with directions made on 9 May 2012 (see Re Kerry (No 2) [2012] NSWCA 127 at [85], items 2 to 4), the first defendant (the Minister) and the second defendant (the Director-General) have given notice of a claim for an order that the first plaintiff (the Grandmother) and the second plaintiff (the Mother) pay the costs of the Minister and the Director-General of the prerogative relief proceedings from 18 November 2011 when the summons was filed. 2It will be convenient to refer to the Minister and the Director-General as the "costs applicants" and the Grandmother and the Mother as the "costs respondents". 3The costs respondents oppose the making of any costs order against them. 4The starting point in deciding how the Court's discretion with respect to costs under s 98 of the Civil Procedure Act 2005 should be exercised in this case is rule 42.1 of the Uniform Civil Procedure Rules 2005: "Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs." 5On that basis, there should be an order as sought by the costs applicants unless some particular consideration specific to the case requires otherwise. 6The costs respondents put forward four reasons why a costs order should not be made against them. 7The first is that s 88 of the Children and Young Persons (Care and Protection) Act 1998 (the "Care Act") prohibits the Children's Court making any order for costs in care proceedings unless there are exceptional circumstances that justify its doing so. (The costs respondents say that s 88 applies also to costs upon an appeal from the Children's Court to the District Court under s 91 of the Care Act; whether that is so is something that need not be decided here). 8Because of the s 88 prohibition, it is submitted, the Supreme Court should operate upon an analogy in such a way that, in the absence of exceptional circumstances, there should be no costs order upon an application for prerogative relief of the kind dealt with in these proceedings. 9The second matter put forward by the costs respondents is that the proceedings were not concerned with the enforcement of any personal right or the obtaining of any personal remedy. Their claims were motivated only by concern for the safety, welfare and wellbeing of the Child. 10Third, the costs respondents note that this Court concluded that the primary judge's approach to the exercise of the statutory jurisdiction was correct, but for a reason not stated by the primary judge; and that counsel for the costs applicants did not seek to support aspects of the judge's reasoning, while the Child's independent legal representative made no submission for or against the grant of the relief sought. 11Finally, the costs respondents point to two cases, said to be similar to the present, in which the question of costs was specifically addressed and no order as to costs was made. The cases are Re Georgia and Luke [2008] NSWSC 1277 and Re Alan [2008] NSWSC 379; (2008) 71 NSWLR 573. 12As to the first matter, the simple reality is that s 88 of the Care Act does not apply to proceedings such as these in which relief in the nature of prerogative relief is sought in respect of a decision of the District Court upon appeal from the Children's Court. Nor is there room for any valid analogy. By acting as plaintiffs to invoke the supervisory jurisdiction of the Supreme Court under s 69 of the Supreme Court Act 1970, the costs respondents chose to enter an arena in which specific rules as to costs apply; and the Supreme Court should apply those rules without regard to principles that operate in relation to proceedings of other kinds. I would endorse the approach taken by Hallen AsJ to a like submission in Wilson v Department of Human Services; re Anna (No 2) [2011] NSWSC 545 at [106]: "In this court, there is no need to find 'exceptional circumstances' before a costs order in favour of a successful party in a child care case can be made. As written earlier, neither the Civil Procedure Act, nor the Uniform Civil Procedure Rules provides for such a requirement. The general theory of costs relies on the result of the litigation: if one is successful, one is entitled to expect an order for costs." 13As to the second matter, it may readily be accepted that the proceedings were concerned with the safety, welfare and wellbeing of the Child. In that respect, it may be appropriate to regard the contest as having had some public interest aspect to it. But even if that is so, the public interest aspect does not, of itself, warrant departure from the general rule that costs follow the event. This is amply confirmed by what was said by McHugh J in Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [90]: "The possibility of adverse costs orders may well inhibit some individuals and groups from bringing cases to court which involve challenges to aspects of public law. Express recognition of this fact does not, however, mean that the courts should remove this inhibition by adopting a practice of declining to follow the usual order as to costs in cases of 'public interest litigation'. Whether or not one regards a particular applicant's actions as well-intentioned and striving, albeit unsuccessfully, to serve some perceived public interest, the respondent still faces real costs from having to defend the proceedings successfully. The applicant had a choice as to whether or not to be a party to the relevant litigation. The respondent typically had no such choice. The legislature has chosen not to protect such applicants from the effects of adverse costs orders, whether by an express statutory exemption or the creation of some form of applicants' costs fund. In such circumstances, one may well feel some sympathy for the plight of the unsuccessful applicant. But sympathy is not a legitimate basis to deprive a successful party of his or her costs. 14At [92], McHugh J dealt with the circumstance (relevant to this case) that the successful defendant seeking costs was a public authority: "Nor is the status of the respondent as a public authority presently relevant. The law judges persons by their conduct not their identity. In the exercise of the costs discretion, all persons are entitled to be treated equally and in accordance with traditional principle. The fact that a successful respondent is a public authority should not make a court less inclined to award costs in its favour. Gone are the days when one could sensibly speak of a public authority having 'available to them almost unlimited public funds'. Moreover, if costs awards are not made in favour of successful respondents such as the council, the public services which those authorities provide must be adversely affected. Every irrecoverable dollar spent on litigation is one dollar less to spend on the services that public authorities do and ought to provide. Often enough the services that will be reduced will be those that favour the politically weak - children, the unemployed, the disabled and the aged. Such results cannot be in the public interest." 15The second matter on which the costs respondents rely therefore does not warrant displacement of the rule that costs follow the event. 16The third matter put forward by the costs respondents centres on the proposition that they enjoyed some measure of success warranting departure from the general rule. Such a submission cannot be accepted. The overall question for decision was whether the primary judge gave effect to and acted in accordance with provisions of the Care Act that it was necessary for the District Court to observe when, upon the appeal to it, that court exercised the functions and discretions reposed in the Children's Court by the Care Act. That question was answered in the affirmative and it makes no difference, for present purposes, that some incidental imperfections in the primary judge's approach were identified. 17It remains to consider the submissions based on Re Georgia and Luke and Re Alan. In Re Georgia and Luke, McCallum J dismissed, as disclosing no reasonable cause of action, proceedings brought by parents whose children had been removed in exercise of a power of emergency removal conferred by the Care Act and who ought to have proceeded in the Children's Court. In Re Alan, Gzell J dismissed an application made to the Supreme Court in its parens patriae jurisdiction by parents seeking to obtain an expeditious hearing in the Children's Court. The decision, in each instance, that there should be no order as to costs flowed from an assessment that it would not be in the best interests of the children to burden the parents with an obligation to pay costs. 18In each of those cases, the ultimate fate of the child (or children) was undetermined and the overriding question of the best interests of the child (or children) had not been addressed. The particular proceeding was, in effect, an early step along the way to some final resolution of the question of the best outcome for the child (or children). For that reason, the court was understandably conscious of the inhibitions that a costs order against the parents might place in the way of the emergence of a just result. 19Here, by contrast, the question of the best interests of the child was determined by the Children's Court and that determination was confirmed upon appeal to the District Court, the decision of which remains undisturbed by a decision of the Supreme Court upon an application for prerogative relief. The merits of the situation were exhaustively examined, according to applicable criteria, at three levels of judicial decision-making. A final result emerged. The consideration that made it inappropriate for a costs order to be made in the two cases mentioned does not operate here. 20In the result, therefore, I am of the opinion that no sufficient basis has been shown to displace the general rule that costs follow the event and that this Court should make an order as sought by the Minister and the Director-General (together with a notation they seek), as follows: "The Court orders that the first and second plaintiffs pay the first and second defendants' costs of the prerogative relief proceedings in this Court from 18 November 2011 to date and the Court notes that: (a)the summons was filed in these proceedings by the first plaintiff on 18 November 2011; and (b)the costs of the District Court proceedings before Balla DCJ are not included in the order." 21TOBIAS AJA: I agree with Barrett JA. 22SCHMIDT J: I agree with Barrett 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. Decision last updated: 28 June 2012