FZ v Commissioner for Children and Young People

Civil Procedure Act 2005 LEGISLATION CITED : Commission for Children and Young People Act 1998 Crimes Act 1900

CASES CITED : FZ v Commissioner for Children and Young People [2010] NSWSC 1144 Permanent Trustee Aust Ltd and Anor v FAI Insurance Co Ltd (Supreme Court of New South Wales, 3 June 1998, unreported)

FZ (Plaintiff) PARTIES : Commissioner for Children and Young People (First Defendant) Administrative Decisions Tribunal (Second Defendant)

COUNSEL : Dr J Griffiths SC (Plaintiff) M Avenell (First Defendant)

SOLICITORS : Logical Legal Solicitors (Plaintiff) I V Knight, Crown Solicitor (First Defendant)

LOWER COURT JUDICIAL OFFICER : Deputy President Britton, Administrative Decisions Tribunal

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

2009/298136 FZ v Commissioner for Children and Young People

JUDGMENT 1 HIS HONOUR: I published my reasons for judgment in the principal proceedings on 8 October 2010: see FZ v Commissioner for Children and Young People [2010] NSWSC 1144. I invited the parties to make submissions on the final form of the orders that I should make. 2 With the exception of the question of costs and whether or not I should grant a stay for a period of 14 days pending a decision by the defendant on whether or not it intends to appeal from my decision to the Court of Appeal, the parties are agreed upon the orders that should be made. 3 The defendant argues that I should order that the defendant pay only 50 per cent of the plaintiff's costs upon the basis that he was successful on only one of the seven grounds of appeal identified in the summons and argued before me. That ground was that the plaintiff had been denied procedural fairness because he was not given the opportunity to cross-examine the principal witness to events and complaints against him arising out of those events, which largely underpinned the Tribunal's decision. 4 Dr Griffiths of senior counsel for the defendant drew my attention to the decision of Hodgson CJ in Eq in Permanent Trustee Aust Ltd and Anor v FAI Insurance Co Ltd (Supreme Court of New South Wales, 3 June 1998, unreported) at 4 as follows: "Although there is some divergence in subsequent cases, there appears to be no disagreement from anyone concerning the statement of principle by Toohey J in Hughes v Western Australian Cricket Association (1986) ATPR 40-748 at 48,136, in the following terms:

'1. Ordinarily, costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order. Ritter v Godfrey (1920) 2 KB 47.

Where a litigant has succeeded only upon a portion of his claim, the circumstances may make it reasonable that he bear the expense of litigating that portion upon which he has failed. Forster v Farquhar (1893) 1 QB 564.

A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other party's costs of them. In this sense, "issue" does not mean a precise issue in the technical pleading sense but any disputed question of fact or of law. Cretazzo v Lombardi (1975) 13 SASR 4 at p 12'." 5 In accordance with this line of authority, Dr Griffiths submitted that much of the hearing before me was concerned with argument on grounds of appeal that were not successful and that as a matter of discretion the costs order that I make should reflect this fact. Even though costs would ordinarily follow the event, he contended that in the particular circumstances of this case a proper exercise of discretion would mean that a different order should be made. 6 The plaintiff opposed this approach. Ms Avenell for the plaintiff submitted that the result in the proceedings was that the whole of the matter should go back to the Tribunal to be heard afresh. This was the high watermark of success for the plaintiff in cases such as this, having regard to the nature of the appeal to this Court and to the particular issues called up for determination by me. It was beside the point that the result rested upon only one of the grounds of appeal for which the plaintiff contended. There was no warrant in these circumstances for a departure from the usual order for costs in favour of the plaintiff. 7 The general rule as to costs is that costs are in the discretion of the court. Section 98(1) of the Civil Procedure Act provides that subject to the rules of Court and to that or any other Act, costs are in the discretion of the court. Section 98(3) of the Civil Procedure Act provides that an order as to costs may be made at any time of the proceedings. UCPR 42.1 provides as follows: " 42.1 General rule that costs follow the event

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." 8 The rule contemplates the making of costs orders in all types of proceedings including those in which witnesses are called and cross-examined by all parties and occupy days or weeks of hearing time at one extreme and cases conducted on agreed facts and written submissions with addresses from counsel in support of the written submissions at the other. Although that is not intended to be an exhaustive or complete description of the cases that might fall to be considered under the rule, for present purposes it serves to distinguish the present case from those where the particular issues in dispute do not crystallise until the evidence is tested and compared. Such cases often promote themselves as proper candidates for special costs orders where much time and effort is directed to matters that ultimately turn out to be false issues. 9 In this case the material to which my attention was directed was limited to precisely the same material that was before the Tribunal, together with a transcript of the proceedings there. There was no factual dispute. The issues were all confined to an assessment of whether or not any aspect of the Tribunal's process or decision warranted an order that it be remitted to the Tribunal for consideration again. Moreover, even though I found that only one ground of appeal was made out, there was to a considerable extent an overlap to be found in the facts that were relevant to all grounds of appeal and the type of legal considerations that they brought forward. In particular, grounds 1 and 2 raised very similar matters and ground 3A was itself informed by matters that were relevant to a consideration of those two grounds. In addition, almost no time at all was spent on grounds 3, 4, 5 or 6. 10 I am not satisfied that there should be any departure from the usual order for costs in this case. 11 The second matter is to some extent of academic interest only. The plaintiff opposes the stay sought by the defendant. However, in the short term there can be no detriment to the plaintiff if a stay were to be ordered pending the defendant's decision with respect to the question of an appeal. The remitter of the matter to the Tribunal and the practical considerations attendant upon a hearing there mean that nothing is likely to happen in the next 14 days in any event. In the long term there seems to be every reason why the further hearing in the Tribunal should be postponed until such time as any appeal by the defendant is heard and determined. I would anticipate that the defendant would prosecute any appeal that it might in due course decide to lodge with all due expedition and I would think it appropriate to impose a requirement that it do so as a condition on the grant of the stay that it seeks. 12 In the circumstances the orders that I propose are those about which the parties agree together with orders that take account of the conclusions that I have reached upon the matters in contest. The orders that I make are as follows: 1. Allow the appeal.

2. Set aside the decision of the Administrative Decisions Tribunal made on 14 October 2009 dismissing the plaintiff's application for an order under s 33I of the Commission for Children and Young People Act 1998 declaring that Part 7, Division 2 of the Act not apply to him in respect of an offence under s 61D of the Crimes Act 1900 for which he was convicted on 29 September 1982.

3. Remit the plaintiff's application to the Administrative Decisions Tribunal differently constituted for decision according to law.

Order that the plaintiff be known by the pseudonym "FZ" with respect to these proceedings, including any appeal.

Order that the witnesses identified in the Administrative Decisions Tribunal proceedings below as "KB" and "VB" be known by those pseudonyms with respect to these proceedings, including any appeal.

Order the first defendant to pay the plaintiff's costs of the appeal to this Court.

Upon the condition that the defendant prosecutes any appeal to which this order refers with all due expedition, order that the above orders be stayed for 14 days or until the hearing and determination of any appeal lodged by the defendant within that period or until further order of the Court.

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.