HER HONOUR: On 13 February 2014, the third defendant filed a notice of motion seeking an order that the plaintiff not be permitted access to any material produced in response to the subpoena to produce issued to Dr Sharon McCallum on 14 October 2013,
On 5 September 2014, I delivered judgment in Herrick v Knowles [2014] NSWSC 1223. I made an order that the plaintiff was refused access to the report of Dr McCallum dated 9 November 2011. I dismissed the notice of motion filed 13 March 2014. I also ordered the plaintiff to pay the defendants' costs on an ordinary basis as agreed or assessed.
When that judgment was delivered, counsel for Dr McCallum did not appear due to an oversight. No application was made regarding the costs of Dr McCallum, who was a non-party. Dr McCallum now seeks her costs and that such costs be paid forthwith. Ms Herrick opposes this application. Counsel for Dr McCallum and Father Knowles have provided written submissions on this topic. I have dealt with this application on the basis of those written submissions.
Section 98 of the Civil Procedure Act 2005 (NSW) (the "CPA") relevantly reads:
"98 Courts powers as to costs
(1) Subject to rules of court and to this or any other Act:
(a) costs are in the discretion of the court, and
(b) the court has full power to determine by whom and to what extent costs are to be paid, and
(c) the court may order that costs to be awarded on the ordinary basis or on an indemnity basis.
…
(3) An order as to costs may be made by the court at any stage of the proceedings or after the conclusion of the proceedings."
Section 98 of the CPA gives the Court a broad discretion to award costs, including ordering a party to proceedings to pay the costs of a non-party. Also, see Pan Pharmaceuticals Ltd; Selim v McGrath [2004] NSWSC 129 per Barrett J at [16] where his Honour referred to s 76 of the Supreme Court Act 1970 (NSW), which is in identical terms to s 98 of the CPA; see also Petrovski v Radin [2000] NSWSC 323 per Sperling J at [14] and [16].
Dr McCallum submitted that the Court has power to make an order for costs in favour of a non-party. Her counsel referred to O'Keefe v Hayes Knight GTO Pty Ltd [2005] FCA 1559 where Nicholson J extracted principles from a number of English authorities on this issue of a costs order awarded to a non-party. Nicholson J (at [24]) set out the principles as follows:
"1. Section 43 of the Federal Court of Australia Act is cast in sufficiently wide terms to enable the Court to make an order for costs in a proceeding for the benefit of a non-party.
For such an order to be made there must be 'costs' and they must be incurred in 'proceedings before the Court'.
Even if those requirements are met, the section requires an exercise of discretion in the particular circumstances in which the issue arises and the requirements of reason and justice.
The making of an order for payment of costs in favour of a non-party will be exceptional and therefore must be treated 'with considerable caution'.
The nature of the relationship between the non-party and the litigation will be relevant."
Section 98 of the CPA is cast in wider terms than s 43 of the Federal Court of Australia Act 1976 (referred to above).
Counsel for Dr McCallum submitted that since each of the elements as set out in O'Keefe have been satisfied, this Court should exercise its discretion in favour of Dr McCallum.
Ms Herrick issued the subpoena addressed to Dr McCallum seeking production of documents. Dr McCallum is the author of the report concerning Father Knowles. Dr McCallum opposed the granting of access to her documents and the report. Her affidavit set out her reasons for opposing access. At the hearing, her affidavit was read without objection.
Father Duro, the Provincial of the Congregation where Father Knowles was a priest, retained Dr McCallum to provide a risk assessment and management plan in relation to Father Knowles some years after the alleged sexual assaults took place. The risk that Dr McCallum was asked to assess was whether there was a likelihood of Father Knowles further engaging in behaviour that was in breach of his commitment to a vow of celibacy in the future.
Dr McCallum's reasons for opposing access to the report and other documents can be summarised as follows.
1. The subpoena is an unduly harsh demand placed upon her.
2. The report records a protected confidence because the information that was given by Father Knowles to Dr McCallum, on which the report was based, was given in confidence.
3. The information was provided in the course of a relationship where Dr McCallum was acting in a professional capacity as social worker with her client [referring to NRMA v John Fairfax Publications [2002] NSWSC 563 at [152]].
4. The nature of the social worker/client relationship dictated that the information be kept confidential. Dr McCallum's view is that by compelling her to reveal what clients tell her in confidence creates an unacceptable conflict with her professional ethics. In turn this will have a negative effect on client interaction and make clients less inclined to be open and frank during interviews. She says that this is likely to affect the treatment they receive and the likelihood of recovery (Aff [19]).
Dr McCallum also drew this Court's attention to paragraphs [936] and [940] of the Australian Law Reform Commission Report 26 'Evidence (Interim)' Report 30 June 1984 and the public interest in protecting those confidences: see [58] of my earlier judgment.
Dr McCallum also made legal submissions in relation to the operation of ss 126A and 126B of the Evidence Act 2005 (NSW). Of particular importance, Dr McCallum highlighted the public interest in preserving the confidentiality of communications between client and social worker (s 126B(4)).
The plaintiff submitted that the fact that no objection was taken to the reading of Dr McCallum's affidavit is irrelevant. She was a volunteer and did not seek leave to participate in the proceedings as if she were a party. Further, the plaintiff says that much of the costs were incurred by Dr McCallum prior to her solicitor attending the hearing of the notice of motion and that even if leave had been sought, it would only have been effective as at the morning of the hearing of the motion. I do not understand this submission as the affidavit prepared before the hearing was essential to the orderly and expeditious conduct of the hearing.
Further, the plaintiff submitted that in circumstances where the formal parties were competently represented and where written submissions were relied upon by the formal parties prior to the hearing; there was no good reason for Dr McCallum to reasonably consider that separate representation, as a non-party, was required reasonably or otherwise. Overall, the plaintiff submitted that, as there are no exceptional circumstances, the application for costs should be dismissed. I disagree.
Dr McCallum incurred costs of preparing her affidavit and engaging counsel to make submissions at the hearing. In the exercise of my discretion, it was necessary and in the interests of justice that this Court be informed of the circumstances in which the report came to be prepared and the arguments regarding confidentiality from the confidant's point of view in individual cases so far as they concern public policy. At the hearing, the parties would not have provided evidence as to assurances that were given by Dr McCallum to Father Knowles when he was interviewed nor the wider issues such as the reluctance for other confiders to be open and frank during interviews and the likely effect on future treatment and recovery. It is my view that these circumstances gave rise to Dr McCallum opposing access to the documents and explaining her reasons, and are exceptional. The principles set out in O'Keefe have been met.
Hence, I make an order that the plaintiff pay Dr McCallum's costs of the hearing. These costs are to include the costs involved in the preparation of her affidavit. As Dr McCallum has no further role to play in these proceedings (other than a potential witness at trial), I order that these costs be payable on an ordinary basis forthwith.
The Court orders that:
1. The plaintiff is to pay Dr McCallum's costs of the hearing on 7 August 2014 on an ordinary basis forthwith. These costs are to include the costs involved in the preparation of Dr McCallum's affidavit.
[2]
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Decision last updated: 12 February 2015