Y v The Secretary, Department of Communities and Justice (No 7) [2021] NSWDC 477

Y v The Secretary, Department of Communities and Justice (No 7) [2021] NSWDC 477

Exceptional circumstances under s 88 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) were amply demonstrated by the appellant's unjustifiable, unruly and time-wasting conduct of the appeal, including repeated non-compliance, baseless allegations, spurious applications and litigation misconduct. Those matters caused the Secretary to incur unnecessary compensatory costs. After allowing for ordinary costs of an appeal, public policy against ordinary costs orders in care proceedings, and a broad-brush discount appropriate to a specified gross sum order, the proper fixed amount was $200,000 including GST.

Jurisdiction
Australia
Judgment Date
10 September 2021
Procedural Posture
Costs Application in a Child Care Appeal / Notice of Motion by the Secretary for a Specified Gross Sum Costs Order After Dismissal of the Appeal
Outcome
Secretary's costs motion granted; appellant ordered to pay a specified gross sum for costs.
Legal Topics
['exceptional Circumstances for Costs in Care Proceedings' 'specified Gross Sum Costs Order' 'litigation Misconduct' 'overriding Purpose' 'non Publication Orders']
['costs' 'child Care and Protection' 'civil Procedure'] ['exceptional Circumstances for Costs in Care Proceedings' 'specified Gross Sum Costs Order' 'litigation Misconduct' 'overriding Purpose' 'non Publication Orders']

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Procedural Posture

Costs Application in a Child Care Appeal / Notice of Motion by the Secretary for a Specified Gross Sum Costs Order After Dismissal of the Appeal

Legal Issues

  1. 1 ['Whether exceptional circumstances existed under s 88 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) to justify a costs order against the appellant in child care appeal proceedings.' 'Whether a specified gross sum costs order should be made under s 98 of the Civil Procedure Act 2005 (NSW).' 'What amount of costs should be fixed after allowing for ordinary appeal costs, public policy considerations, and a broad-brush discount.']

Ratio Decidendi

Exceptional circumstances under s 88 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) were amply demonstrated by the appellant's unjustifiable, unruly and time-wasting conduct of the appeal, including repeated non-compliance, baseless allegations, spurious applications and litigation misconduct. Those matters caused the Secretary to incur unnecessary compensatory costs. After allowing for ordinary costs of an appeal, public policy against ordinary costs orders in care proceedings, and a broad-brush discount appropriate to a specified gross sum order, the proper fixed amount was $200,000 including GST.

Court Disposition

Secretary's costs motion granted; appellant ordered to pay a specified gross sum for costs.

Orders

  • ['Pursuant to s 88 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) and s 98 of the Civil Procedure Act 2005, within 28 days of 10 September 2021, the appellant is ordered to pay the costs incurred in these proceedings by the Secretary of the Department of Communities and Justice in the...