L v Director of Family Services No. Sca 49 and 50 of 1997 [1998] ACTSC 243 (17 June 1998)

  
  
  
  

  
   

  

   IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

   HIGGINS J

  

  

   Costs - Child care
proceedings - Successful appeal against interim orders
for children to reside as directed by Director of Family Services -
Substantive
application later discontinued by respondent - Principles relevant
to exercise of Supreme Court's jurisdiction to award costs of
appeal - Where
serious flaw in procedure adopted by respondent initially - Whether public
interest factors relevant - Whether sufficient
reason to depart from usual
compensatory principle - Costs awarded to appellant on Supreme Court scale.

  

   Children's Services
Act, s 94

   Magistrates Court (Civil Jurisdiction) Act, s 22(9)

   Supreme Court Act 1933, s 23

  

   Director of Family Services v A&B (Federal Court of Australia, Miles, R
D Nicholson and Finn JJ, 15 April 1998,
unreported); discussed and followed

   Oshlack v Richmond River Council [1998] HCA 11;  (1998) 72 ALJR 578; discussed

  

  

   CANBERRA, 8 May 1998 (hearing), 17 June 1998 (decision)

   #DATE 17:6:1998

  

   Appearances

  

   Counsel for the Appellant: C Everson

   Instructing Solicitors: Saunders and Company

  

   Counsel for the Respondent:
P Mathie

   Instructing Solicitors: ACT Government Solicitor's Office

  

  

   THE COURT ORDERS THAT:

  

  

   1. The respondent
pay the appellant's costs in each appeal.

  

   2. Such costs are to be assessed according to the full Supreme Court scale
and
taxed by a taxing officer of this Court, if not agreed.

  

   HIGGINS J

  

   1. On 26 June 1997 I upheld appeals against certain
interim orders made in
the Children's Court by the learned Chief Magistrate. I delivered written
reasons for that decision on 2 October
1997.

  

   2. Costs were reserved.

  

   3. Since then it is common ground that there was no subsequent substantive
hearing
of the applications made by the respondent. The respondent contends
that she declined to continue with those applications because
of the
complexity of the matters rather than any acknowledgement that the substantive
applications lacked merit.

  

   4. Indeed,
she says that it does not appear to have been disputed that some
kind of intervention was warranted. She concedes, however, that
"it would have
been better" to have made the substantive applications rather than to have
entered into the purported agreements under
s 94 of the Children's Services
Act.

  

   5. I accept that it was reasonable for the respondent to have been
concerned about the
appellant's parenting of her children. It may not have
warranted long-term separation of the children from her but, clearly, some
supervision order was likely to have been made whether by consent or not.

  

   6. However, the appellant says that the appeal
in relation to the interim
orders made was really rendered necessary, not by the fact that the respondent
had sought orders from
the Children's Court, but rather because the respondent
effectively took unfair advantage of the s 94 agreement to seize a forensic
advantage she otherwise would not have enjoyed.

  

   7. I should make it clear that I am not empowered to make any order
concerning
the costs of the substantive proceedings in the Children's Court.
That is a matter for that Court. It has power to make orders for
the costs of
the proceedings before it including the applications for interim orders. I am
dealing only with the costs of the appeal.
There is no appeal in relation to
the substantive proceedings in the Children's Court nor in relation to any
consequential costs
order it might grant or refuse.

  

   8. I accept that I could make a discrete order for the costs of the
application for the interim
orders but I consider that it would not be
appropriate to separate those costs out. Even assuming that the respondent
would have
been refused interim orders, it is more appropriate that the Court
disposing of the substantive matters deals with that aspect of
them.

  

   9. The power to order costs is, of course, statutory. In the Children's
Court costs of applications may be ordered
in accordance with sub-section
22(9) of the Magistrates Court (Civil Jurisdiction) Act. As to costs in this
Court, the Full Court
of the Federal Court noted in Director of Family
Services v A&B (Federal Court of Australia, Miles, R D Nicholson and Finn
JJ,
15 April 1998, unreported) at para 15:

  

  

   "Clearly the costs of the appeal to the Supreme Court were in the
discretion of
his Honour."

   10. So they are in this case.

  

   11. Jurisdiction to order those costs stems not from the Magistrates Court
(Civil Jurisdiction) Act but from s 23 of the Supreme Court Act 1933.

  

   12. As their Honours noted, the discretions conferred by each are not
necessarily exercised upon the same principles.


 

   13. The principle applicable to the s 23 discretion, even in
non-adversarial litigation, was noted by their Honours as being:

  

  

   (at para 23) "...where a court has an open discretion as to costs and where
there is no reason to make an order to the
contrary, costs should ordinarily
follow the event."

   14. Even so, in Director of Family Services v A&B the costs order made
against the Director of Family Services (DFS) in relation to the Children's
Court proceeding under appeal was upheld on the basis
that good reason had
been demonstrated to depart from the usual order that each party bear his or
her own costs. The enquiry leading
to and consequent upon the original care
applications in that case was seriously flawed. On the other hand the
respondent mother
had behaved responsibly.

  

   15. In this case, also, there was a serious flaw in the procedure adopted
by the respondent leading
up to the making of the application. It had the
effect of improperly reversing the status quo which otherwise should have
obtained.
While I accept that it was not the intention of the respondent in
entering into the s 94 agreement to alter the status quo so as
to give her
that forensic advantage, it was the effect of what she did.

  

   16. If I was exercising the discretion conferred
by s 22(9) of the
Magistrates Court (Civil Jurisdiction) Act, I would consider that the serious
flaw in the process, given its relevance
to the need then arising for the
appeal to this Court, would warrant a costs order in favour of the appellant.

  

   17. In a sense,
that makes it unnecessary to consider whether the s 23
discretion is more or less favourable to the appellant. However, the
respondent
submits that the principles underlying the s 23 discretion should
not give primacy to the usual expectation that costs follow the
event in the
absence of some relevant reason associated with the litigation indicating a
contrary view. That is said to follow from
the fact that in the proceedings
appealed from a more restrictive discretion (s 22(9)) would be exercised.
Their Honours in Director
of Family Services v A&B did not need to address
the question as to whether the nature of the particular litigation and
questions
relating to "public interest" arising therein had any role to play
in the exercise of the s 23 discretion.

  

   18. They denied
that public interest factors were relevant. I would,
however, note that in Oshlack v Richmond River Council [1998] HCA 11;  (1998) 72 ALJR 578, a
majority of the High Court (Gaudron, Gummow and Kirby JJ; Brennan CJ and
McHugh J contra) held that the public
interest nature of the particular
litigation was relevant to whether even the ordinary rule that a successful
party should have costs
should be displaced. The learned trial judge, Stein J,
whose decision Gaudron and Gummow JJ considered free from appellable error,
had reasoned that there was a "starting point" favouring an award of costs to
a successful party. "Something more" than the categorisation
of the litigation
as promoting the public interest was necessary, his Honour held, to deny costs
to the successful litigant.

  

   19. In his Honour's view, that something more was, in summary:

  

  

   * that the motivation of the appellant, the unsuccessful
litigant, was to
secure obedience to the law and preserve endangered fauna rather than to gain
some private advantage;

  

   *
that there was a significant number of members of the public who shared
the appellant's concerns as to the particular habitat; and

  

   * that the basis for the challenge had been "arguable". It had resolved
significant legal issues for the future administration
of such habitats and
had been reasonably pursued.

  

   (See 581-2 for a more detailed summary of the reasons of Stein J)

   20.
Kirby J adopted a similar approach but with a different emphasis. His
Honour said at 608:

  

  

   "The issue is not the subjective
motivation of the litigant but the public
or private character of the litigation. If there is an element of inequality
in the approach
to the costs of a person such as the appellant, it is simply
one designed to redress, in the appropriate case, the serious inequality
in
resources which typically (but not always) applies in the case of litigation
commenced in the public interest between an objector
and the public or private
body resisting the objector's demands."

   21. Reference had been made in argument to the recommendations
of the
Australian Law Reform Commission that a special rule be enacted in such cases.
As it had not been so enacted, the respondent
contended that the relevant
statutory discretion, being at large, should be interpreted no differently
than for more usual adversarial
litigation.

  

   22. His Honour commented, at 608:

  

  

   "...the mere fact that law reform bodies have investigated, and
recommended, special orders as to costs in public interest litigation does not
mean that, in appropriate cases, the general discretion
will not suffice. The
Australian Law Reform Commission in its report on the subject has acknowledged
that special orders are sometimes
made under the general discretion."

   23. That rule, in his Honour's view, is based upon the following principle:

  

  

   "...compensation
to the successful party is the reason why that party will
ordinarily have a reasonable expectation of recovering its proper costs,
the
limits of the principle are clear. It says nothing about exceptional or
special circumstances which warrant a departure from
the general rule. Such
departures have quite often arisen in the past, as I have demonstrated... The
possibility of such departure
cannot be denied, given the breadth of the
statutory language in which the discretion is expressed. (at 608-9)"

   24. It is, therefore,
clear that it is at least arguable that the
respondent's contention is correct despite the fact that it is clearly
contrary to the
approach of the Full Court in Director of Family Services v
A&B. It is, however, also arguable that that latter approach is contrary
to that of the majority of the High Court, though not the minority, in Oshlack
(supra). However, happily, it is unnecessary for me
to resolve that apparent
conflict. Even if the approach of the majority of the High Court in Oshlack
was to be adopted rather than
that of the Full Court in Director of Family
Services v A&B, the respondent has failed to persuade me that there is any
sufficient
reason apparent to depart from the usual compensatory principle.
Further, given the serious flaw in the proceedings for which the
respondent is
responsible the appellant has positively persuaded me that such an order is
warranted even if the discretion was to
be governed by s 22(9) rather than s
23.

  

   25. There will be an order that the respondent pay the appellant's costs in
each
appeal. Costs are to be assessed according to the full Supreme Court
scale and are to be taxed by a taxing officer of this Court,
if not agreed.