Re Felicity; FM v Secretary, Department of Family and Community Services

Application of principles

The costs in question in the present case are the costs of the proceedings in this Court seeking to set aside the judgment of the District Court. Such proceedings by way of judicial review in the supervisory jurisdiction of this Court provide relief in limited circumstances. It is necessary for an applicant to demonstrate error of law on the face of the record or jurisdictional error.
The primary relief sought was by way of declarations, expressed in the alternative. For example, the first declaration sought was that the Director General had no standing to commence proceedings in relation to Felicity after she attained eight years of age and, in the alternative, that the Director General had standing. Unless error was established in the judgment under review, such declarations served no purpose. The applicant was wholly unsuccessful in that regard.
The arguments put in respect of each ground of relief were addressed in the principal judgment of this Court and need not be repeated, despite the fact that Mr Potkonyak, in seeking to establish that the grounds were not without reasonable cause, repeated each in summary form in his submissions in resistance to the present application.
The solicitor's submissions addressed each phrase in pars (a) and (b) of s 99(1) in order to reject the submission that his conduct fell within any particular phrase. He did not deny in his affidavit, nor seek to argue in his written submissions, that the proceedings were conducted otherwise than on the basis of his understanding of legal principle. Nor did the mother suggest in her affidavit that she had not given instructions for Mr Potkonyak to bring proceedings as he did on her behalf, in accordance with his understanding as to the law. Neither mother nor solicitor gave evidence that Mr Potkonyak had given advice, let alone as to the content of any advice given.
Before addressing the substantive bases upon which an application by the Secretary could properly succeed, it is convenient to dismiss what might be described as false bases. First, the Court was asked to deal with the costs of the proceedings before it: except to the extent that the underlying proceedings in the Children's Court and in the District Court affect the merit of the proceedings in this Court, the conduct of those proceedings should be disregarded. By way of example, the affidavit filed for the Secretary referred to earlier proceedings, including judgments of Judge Marien SC, President of the Children's Court, and Magistrate Murphy, both dealing with the costs of proceedings brought pursuant to s 90(1) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) ("the Care Act"). Under s 88 of the Care Act, the Children's Court cannot make an order for costs in care proceedings absent "exceptional circumstances" that justify it doing so. Judge Marien, in a judgment delivered on 10 February 2012, gave careful consideration to whether he should make an order for costs, not only in favour of the father, but against Mr Potkonyak personally. Although it would appear that he believed that, had he the power to do so, such an order should be made against Mr Potkonyak, he held, correctly, that s 99 did not apply to care proceedings in the Children's Court, referring to the Civil Procedure Act, s 4(1) and Sch 1. Magistrate Murphy, in a decision delivered on 17 July 2013, decided there were exceptional circumstances warranting an order that the father's costs be paid by the mother.
These decisions are relevant to the extent that they demonstrate the views expressed as to the lack of merit in the proceedings brought on behalf of the mother. This Court should not, nor is it asked to, make orders which could not be made in the Children's Court in relation to the costs in that Court.
Secondly, reference has been made in the material (both in the affidavit of the case worker from the Department filed in this Court, and in decisions in the Children's Court) to the fact that the mother has failed to pay any costs order made against her up to the present time. That may be so, but it has no direct relevance to the present application. A party's delinquency in failing to comply with court orders with respect to costs is not to be visited on her solicitor by way of an order that he pay the costs in the present proceedings.
Thirdly, the purpose of a costs order is not to deter the solicitor from acting for the mother in further proceedings which have some reasonable basis in law and in fact. Rather, it is to ensure that the costs incurred in the present proceedings are not merely visited on the unsuccessful party, as would be the usual order in accordance with s 98 of the Civil Procedure Act, but are met by the person responsible for causing unnecessary costs to be incurred, in the circumstances where s 99 is engaged.
This was a case in which the reasonableness of the proceedings in this Court depended to a significant extent (though not wholly) on the reasonableness of the proceedings commenced in the Children's Court for a variation of the care order to which Felicity was subject in 2011.
The factual underpinnings of this case date back to 16 October 2009 when a magistrate in the Children's Court made orders allocating parental responsibility for Felicity to her father, with responsibility for contact with her mother and sister resting with the Minister. That order was made under s 79 of the Care Act. Such orders can be varied pursuant to an application under s 90 of the Care Act. The primary orders continued until Felicity attained eight years of age; in 2012 the Secretary (then the Director General) sought a variation of the orders to extend until Felicity turned 18.
The dispute between the parties has turned on the issue of supervision during contact visits. Since 2011 the mother has opposed supervised visits: indeed, since about October 2011, she had refused to participate in arrangements for supervised visits.
In the District Court, Judge Olsson SC gave careful consideration to the competing considerations relevant to the orders sought. Because of the need to identify legal error on her part, the submissions in this Court attacked the fact finding process as involving a failure to direct her mind to the merits of the arguments. This was formulated in one part as a complaint of procedural unfairness which was dismissed by this Court. [16] Further, the reasons noted: [17] "The proposition that Olsson DCJ did not give adequate consideration to the submissions on behalf of the applicant was simply a misrepresentation of her reasons for judgment. … No specific passage in the judgment was relied upon, nor was there reference to specific submissions which were disregarded."
In other respects, attempts to identify legal error on the part of the District Court were either misconceived or otherwise lacking in substance. They were of the kind which a competent and responsible legal practitioner should have advised a client were untenable and would certainly lose.
If there were evidence that such advice had been given and that the client had nevertheless directed the practitioner to put forward such arguments, a different question would have arisen, as to whether the practitioner should be mulct in costs for having put the other party to expense unnecessarily and inappropriately, albeit in accordance with express instructions. Even if undertaken on instructions, such conduct would constitute a breach of the practitioner's obligations under s 56 of the Civil Procedure Act, as it would the obligations of the litigant under the same provision. It may well be that, in such circumstances, both parties should be liable for the costs thus incurred. However, in the present case, there was no evidence that such advice was given, nor that instructions were given based on such advice, so the issue does not arise.
In written submissions in support of the motion, the Secretary made reference to particular findings in the principal judgment at [21], [22], [28], [40], [42], [46], [52], [55] and [56]. (These passages need not be restated here.) The practitioner's submissions in response, so far as they addressed the present proceedings, relied upon two broad propositions. The first was that the Secretary had deemed it appropriate to brief experienced counsel in the matter, thereby implying acceptance of the proposition that there were arguments of substance to support the application. Such a submission is no substitute for a consideration of the actual merits of the case presented. So far as the substantive issues went, the practitioner repeated many of the submissions which had been rejected, in terms which were dismissive of any view to the contrary. Despite the rhetorical strength of some submissions, he accepted that it was only necessary to demonstrate that his arguments "were not hopeless and without merit". [18] He also placed weight on what he described as the Court's refusal to grant relief in terms of the declaration sought in paragraph 2 of the amended summons, which he described as "the pivotal issue in the whole matter", as to which he was left "still wondering" about the Court's conclusion in that regard.
Paragraph 2 of the relief claimed sought a declaration that "the matter involving the child [Felicity] ceased to be a care and protection matter on the day [she] attained eight years of age and falls outside of the care and protection jurisdiction". (An alternative, contrary, declaration sought was that "until the orders is rescinded [sic] or the child attains 18 years of age" the matter may be dealt with "in the care protection jurisdiction only …".)
It is true that declarations were not made in the terms sought in any of the paragraphs of the further amended summons. It was, however, noted in the principal judgment that one of the orders made in 2009 operated to confer parental responsibility on the father until the child attained 18 years. [19] If by seeking a declaration that "the matter … ceased to be a care and protection matter" the practitioner was contending that the child was no longer subject to a court order as to her care after she attained the age of eight years, that was factually wrong. If the declaration sought to identify a limitation on the jurisdiction of the Children's Court, it was legally wrong. That contention, the basis of which was not clearly articulated, was dealt with in the principal judgment at [23]ff.
In short, the practitioner's submissions raised no doubt as to the correctness of the conclusions reached in the principal judgment; rather, they support an assessment that the practitioner has a significantly flawed view of the scope of, and the legal principles applicable in, the care and protection jurisdiction.
The submissions for the Secretary should be accepted: Mr Potkonyak should bear the costs of the father and the Secretary in this Court. The Court has not been invited to fix the amount of those costs.
Accordingly, the Court should make the following orders: 1. Order that George Potkonyak, the solicitor for the applicant in the proceedings in this Court, pay to the Secretary and the father the amount of the costs which the applicant was ordered to pay to those parties, being costs incurred in this Court. 2. Order that Mr Potkonyak pay the Secretary's costs of this motion of 29 July 2014.
WARD JA: I have had the advantage of reading in draft the reasons of Basten JA. I agree with the orders proposed by his Honour. As his Honour noted, the attempts by the mother to identify legal error on the part of the District Court decision subject of the application for judicial review were either misconceived or lacking in substance. The proposition that the primary judge did not give adequate consideration to the applicant's submissions was a misrepresentation of her Honour's reasons for judgment.
I agree with Basten JA that the submissions made on the application before this Court were of a kind which any competent and responsible legal practitioner should have advised a client were untenable.
I also agree that the submissions made by the mother's legal representative raised no doubt as to the correctness of her Honour's conclusions and supported the conclusion that the practitioner has a significantly flawed view of the scope of, and the legal principles applicable in, the care and protection jurisdiction.
In the absence of any evidence that the legal practitioner had advised against raising the untenable arguments that were raised on this application, it can only be concluded that the costs of the proceedings have been incurred by the serious incompetence of the legal practitioner and it is appropriate that the legal practitioner bear the costs of the father and the Secretary in this Court.
EMMETT JA: By notice of motion filed on 29 July 2014, the Secretary, Department of Family and Community Services (the Secretary), the respondent in these proceedings, applied for an order that Mr George Potkonyak (the Solicitor) pay the whole of the costs of the Secretary and the third respondent (the Father) that the Court has ordered the applicant in these proceedings (the Mother) to pay to the Secretary and the Father and that the Solicitor indemnify the Mother for those costs. In the alternative, the Secretary seeks an order that the Solicitor pay to the Mother the whole of the costs that the Mother has been ordered to pay to the Secretary and the Father in the proceedings. The Solicitor acted for the Mother in the proceedings.
The proceedings concern a child of the Father and the Mother (Felicity). The Secretary commenced proceedings under the Children and Young Persons (Care and Protection) Act 1998 (NSW) to vary orders made in relation to contact with Felicity. The Children's Court made orders on 26 April 2013 providing for Felicity to continue to live with the Father and to have contact with the Mother as organised by the Secretary until she is 14 years of age. The Mother appealed from those orders to the District Court, where she was unsuccessful. The Mother then brought proceedings in this Court seeking judicial review of the decision of the District Court. This Court ordered that the proceedings be dismissed and ordered the Mother to pay the costs of the Secretary and the Father.
The present application relates to the costs so ordered and is made under s 99 of the Civil Procedure Act 2005 (NSW). That section applies if it appears to the Court that costs have been incurred by the serious neglect, serious incompetence or serious misconduct of a legal practitioner, or improperly, or without reasonable cause, in circumstances for which a legal practitioner is responsible. Section 99(2) relevantly provides that, where the section applies, the Court may:

disallow the whole or any part of the costs in the proceedings;
direct the legal practitioner, if a solicitor, to pay to the client the whole or any part of any costs that the client has been ordered to pay to any other person;
direct the legal practitioner to indemnify any party, other than the client, against costs payable by that party.

I have had the advantage of reading in draft form the proposed reasons of Basten JA. I agree with Basten JA, for the reasons proposed by his Honour, that s 99 applies in the present circumstances, having regard to the conduct of the proceedings by the Solicitor, and that the Court has the power in its supervisory jurisdiction to make costs orders against legal practitioners. I also agree with the orders proposed by Basten JA for the reasons proposed by his Honour.

At a glance

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Judgment (8 paragraphs)

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Legislation Cited (6)

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Cited By (25)