Children's Court New South Wales

• Medium Neutral Citation: In the matter of Mr Donaghy (Costs) [2012] NSWChC 11
• Hearing dates: 22 and 23 November 2011 and 27 February 2012
• Decision date: 07 May 2012
• Before: Magistrate David Heilpern

Decision

No order as to costs

• Catchwords: COSTS - power of Children's Court to order costs against legal practitioner - non-attendance at court for hearing - no application to re-list matter - Practice Note 5 - case management - cogent and compelling reasons - duties of legal practitioner - s 88 Care Act
• Legislation Cited: Children and Young Persons (Care and Protection) Act 1998; Civil Procedure Act 2005; District Court Act 1973; Local Court Act 2007; Children's Court Act 1987
• Cases Cited: Wilson v Department of Community and Human Services re Anna (No. 2) [2011] NSW SC 545; Lemoto v Able Technical Pty Ltd & 2 Ors [2005] NSWCA 153; Knaggs v JA Westaway & Sons Pty Ltd and Others (1996) 40 NSWLR 476; George v Children's Court of NSW [2003] NSWCA
• Category: Costs
• Parties: Mr Donaghy
• Representation: Mr Donaghy in person
• File Number(s): 14-18/2010
• Publication restriction: Any information that names or is likely to lead to the identification of a child or young person who is reasonably likely to involved or mentioned in Children's Court or non-Court proceedings in any capacity must not be published or broadcast in any form that may be accessible by a person in New South Wales whether the publication or broadcast occurs before any proceedings have commenced, during the proceedings or after they are disposed of. This prohibition applies until the child or young person turns 25 years of age or dies.

Judgment

1 This is a matter where the court is considering making a costs order against a legal practitioner in person in a care matter in the Children's Court.

2 This judgment is divided into the following subheadings:

(1) Background to proceedings

(2) The events of 22 November 2011

(3) The events of 23 November 2011

(4) The submissions of Mr Donaghy

(5) The cost to the community by the conduct of Mr Donaghy

(6) General legal responsibilities of practitioners toward the court

(7) Statutory basis of an order for costs against a practitioner

(8) Findings

(9) Actions

Background to Proceedings

3 The care proceedings which gave rise to the costs issue were matters where the Department of Family and Community Services had removed five young Aboriginal children from the care of their mother. They had been temporarily placed in the care of the Minister, who had delegated their day-to-day care to an agency called "Life Without Barriers". The matter was originally set down for one day and was heard on 5 July 2011, and then listed for two further days on a part-heard basis, 22 and 23 November 2011.

4 It was listed with priority, and no other matters were listed for those two days.

5 The reason for the matter not being completed was not the fault of any of the practitioners involved. Mr Donaghy for the mother cross-examined the principal caseworker who disclosed that the children had been mistreated by the foster carers arranged by Life Without Barriers, and that they had recently been relocated. This mistreatment included assaults and being locked inside their rooms for extended periods, with locks on the outside of the doors. There was nothing in the affidavit material by Departmental officers to indicate these dreadful occurrences.

6 After the first day of the hearing, an alternate care plan was produced by the Department which involved various care options for each of the children, including family placements, and a prospect of restoration to the mother. These care plans were not served on Mr Donaghy until 21 November 2011. Two of the care plans were not served, but Mr Donaghy was put on notice as to their contents. Broadly, these care plans were more favourable to the mother than the Department's position previously.

22 November 2011

7 On this day Mr Donaghy did not attend at court. He was in the Federal Magistrate's Court in Lismore. When this became apparent to me, I directed that he attend court, and had my court officer ring his office in Lismore, and stood the matter down for an hour and a half.

8 When the matter was re-mentioned after the expiration of that time, Mr O'Connor, a Grafton practitioner, mentioned the matter on behalf of Mr Donaghy. He was instructed to seek to have the matter stood over until the next day, so he could get instructions from his client on the care plans. No instructions were given to Mr O'Connor as to why Mr Donaghy and his client were not there.

9 At that time I made my displeasure known, and asked Mr O'Connor to convey that to Mr Donaghy. I stated:

"It's not just a question of rudeness, it's not just a question of waste of resources, it is actually a question of professional misconduct not to bother to turn up to court on a hearing day when a matter hasn't settled..."

10 I then adjourned the matter. I note that the court could have made orders ex parte at this time, given the absence of a party. However, in care proceedings, such a step is rarely appropriate, and in the circumstances of this case was utterly inappropriate.

23 November 2011

11 On this day the matters settled by way of consent orders, by 11am. Mr Donaghy asked to be heard in relation to my comments from the previous day. It is necessary to refer at this time to a lengthy extract of those proceedings which appear below:

HIS HONOUR:	I'll indicate to you the area that I require you to address me on. Yesterday the matter was set down for hearing.
DONAGHY:	Yes your Honour
HIS HONOUR:	It had been set down for hearing for three months. You were not at court at 9.30 when court was due to start. A letter was handed up which said that because of the late service of material, I'm paraphrasing here, you required time for your client to consider the amended care plans, it's most likely this matter will settle therefore we are of the view that the two days allocated to this matter will not be required. So then you had somebody mention the matter on your behalf to that effect. Last time I looked, the only person who had determined whether a matter proceeds on a part-heard matter is the Court, it is not for you or indeed, for any of the other parties to make that determination. I was ready to hear the matter, Ms Steiner was here, Mr Wheelahan was here, you were not here. I then stood the matter down till 11.30 so you could get here whereupon you appointed an agent who said you weren't coming. Now, late service of material is common in all non-criminal and indeed, in criminal jurisdictions that this Court deals with, it is unfortunate but it is not uncommon, it is not in my view on the face of it, subject to hearing from you, a reason not to bother coming to court and to make an assumption that as the matter is now likely to settle, you weren't going to turn up and nor was your client. That's what I want you to address me on.
DONAGHY:	Yes your Honour I appreciate you putting it in that way, I obviously haven't been looking at it from - I understand what your Honour's saying, if your Honour took offence at--
HIS HONOUR:	It's not a question of taking offence. The issue is that when a matter is set down for hearing - well I think we should start from first principles. The practice note in the Children's Court is crystal clear, I will just gather it, the practice note which is headed, "Children's Court Practice Note Number 5 Case Management Care Proceedings," it of course replaces a whole series of practice notes but what it says at point 19 is this "If it appears to a party that a hearing date is in jeopardy as a result of non-compliance with orders or directions of the Court or because of intervening events, the party must immediately approach the Court for urgent relisting of the matter before a Children's Magistrate. Any application to vacate a hearing date must be in writing on the prescribed form 'Application to Vacate a Hearing Date.' The party bringing the application to vacate a hearing must give reasonable notice to all other parties that an application to vacate is being made. When a hearing date has been allocated, it will not be vacated unless the parties seeking to vacate the hearing provides cogent and compelling reasons." No such application has at any time been made to me Mr Donaghy.
DONAGHY:	Your Honour as I say, I had discussions with Mr Wheelahan at approximately 2pm on Monday, Mr Wheelahan advised me that he had - you had raised the matter with him earlier that day in court, my recollection is that Mr Wheelahan had indicated to your Honour that the parties were talking and that there was progress. My recollection again from Mr Wheelahan is that he told me that he would - when I said to him I raised the prospect of given the department's dramatic change in position on Monday afternoon that this matter could settle. I think Mr Wheelahan had advised me that he would come back across to the Court on Monday afternoon and inform of those discussions. Now Mr Wheelahan then in the course of our attempts to settle what has been a very difficult and may I say, tragic matter for the children given the evidence of their being assaulted in care that was revealed--
HIS HONOUR:	Let's just stick to the issue
DONAGHY:	Well your Honour as I say, settlement is always preferable to a Court determination.
HIS HONOUR:	But there is no doubt about that at all, there is no difference to this than a civil matter where parties come before the Court and say, we were served with these documents late, we seek an adjournment and vacate the hearing date.
DONAGHY:	Well I'm not trying to be difficult with your Honour but I take the view that these are children's proceedings and they're not like other civil proceedings.
HIS HONOUR:	Yes but the same rules apply--
DONAGHY:	Well your Honour--
HIS HONOUR:	--when a matter is set down for hearing, you must attend or vacate the hearing, it's that simple.
DONAGHY:	And as I say your Honour, on Monday afternoon I was in the process of preparing an affidavit by my client to serve on the Court because I anticipated having to come here on Tuesday and go to war and have a repeat of 5 July, that's where I was at 2pm on Monday your Honour, I was anticipating another unpleasant, bruising encounter--
HIS HONOUR:	You're repeating yourself, why were you not here on the date it was set for hearing?
DONAGHY:	Because Mr Wheelahan and I were attempting to resolve the matter, Mr Wheelahan graciously and I'm not trying to - graciously agreed to mention the matter on my behalf, my client resides in Brisbane, I had been served with 50 to 60 pages of care plans, there was a proposal now that these children would be separated, five children who had been together in care for 13 months--
HIS HONOUR:	Yes I appreciate that you were--
DONAGHY:	--my client--
HIS HONOUR:	Just a moment, I appreciate you were served late with material. Mr Wheelahan did mention the matter insofar as noting that there were discussions that were taking place. You fail I think to comprehend what I am trying to point out which is that it is only the Court that can vacate a hearing date.
DONAGHY:	And I appreciate that your Honour but the matter - what we were attempting, what I was attempting to do, I can't speak for what was inside Mr Wheelahan's mind, was to simply stand the matter down yesterday while we tried to resolve the issues.
HIS HONOUR:	It was stood down till 11.30--
DONAGHY:	And your Honour--
HIS HONOUR:	--it could - just a moment, it could not be resolved and yet you still did not appear and instructed an agent to seek that the matter be adjourned till tomorrow--
DONAGHY:	Due to the late--
HIS HONOUR:	--while you attended to matters in the Federal Magistrate's Court.
DONAGHY:	Well again - no, no that is not correct at all your Honour, that is not correct at all. I had an agent organised on Monday to deal with my Federal Magistrate's Court matters if that's what your Honour's concerned about, I had an agent organised, given the turn of events I was able to attend at those matters but that was not the reason I did not appear yesterday.
HIS HONOUR:	Well why didn't you appear yesterday when requested to by the Court at 11.30 with an indication that the matter was going to proceed?
DONAGHY:	Well I had arranged an agent, I received notification at ten past ten, I simply physically could not have been here at 11.30 your Honour, I received notification my client hadn't traveled down from Brisbane. Again I go back to the late service. I think it's unreasonable of the Director General to place my client, an indigenous woman in a situation where she has to be expected at court to agree to the separation of her children after some 18 months of these proceedings being before the Court, I simply put to Mr Wheelahan that for us to enable to obtain a reasonable settlement in this matter that I required time to send the care plans to my client, have her consider them properly, have discussions with her and can I say when we came here this morning your Honour the situation was when the matter was mentioned before your Honour, I told Mr Wheelahan we had an agreement on the three youngest children, my client had agreed to the orders that the children be placed with the maternal grandmother--
HIS HONOUR:	I do not need to know, nor is it appropriate for me to know the various stages of negotiation.
DONAGHY:	Well I think it is your Honour.
HIS HONOUR:	Well I understand that and I'm suggesting to you that at this stage, I don't need to know that. What I am concerned about is this, a matter is set down for hearing, the practitioner for the mother clearly tells the mother not to come to court due to the late service of the material, he doesn't come to court due to the late service of material, the matter is - Mr Wheelahan mentions the matter and I indicate that I want you and the mother here and that doesn't happen because you have clearly made a decision that you are the one who decides whether the hearing will go ahead or not subject to the state of negotiations, not the Court.
DONAGHY:	No, no your Honour as I say, that's not why I was not here, I was not here because we were attempting to discuss the matter--
HIS HONOUR:	Okay I hear that.
DONAGHY:	--and avoid a hearing, your Honour if those discussions hadn't taken place, your Honour would've been looking at my client's position on Monday afternoon was she wanted her five children back, she was outraged at the separation of her children.

12 It is clear from this material that Mr Donaghy believed that he had the right not to attend court on a specially fixed part heard care matter because he made the decision that it was better that he continue the negotiations (in between going to the Federal Magistrates Court) and that the Childrens Court would just have to wait to meet his convenience and his decision that the matter would be adjourned until the next day. He believed it was acceptable to tell his client not to come to court as these negotiations took place. He was either unaware or did not care about the practice direction.

13 At this time I informed Mr Donaghy that I was considering making a costs order against him personally. I adjourned the matter to give Mr Donaghy an opportunity to obtain legal advice, and to prepare any affidavit material and submissions.

Mr Donaghy's submissions

14 Mr Donaghy did not make any written submissions. He chose instead to make oral submissions on 27 February 2012. Mr Donaghy made some extraordinary submissions on that day in a most unseemly and rude manner. He stated that he did not make written submissions because "this is simply running up costs that I can't recover...I'm not getting paid for this and I object to you dragging this matter out in this manner". He stated that care was a specialist jurisdiction where specialist magistrates learn that DOCS "put forward material that is not correct, that is not complete and that is not in the best interests of the children". He stated that I should not make a costs order against him because:

"...it would be very unfortunate for the Children's Court to appear to consider that assaults upon 12 year old Indigenous children, locking children in their bedroom for 12 hours overnight, is somehow acceptable behaviour. And, it would also be unfortunate if the message was to be sent to the Department of Community Services, well you can file documents with the Court that are misleading and if anyone questions you, the persons who question you will be hit with a costs penalty".

15 Out of these seemingly irrelevant and inflammatory contentions there were some submissions of note. Firstly, Mr Donaghy submitted that if parliament had wished to give the court the power to make orders against practitioners, then it would have stated so specifically. Secondly, Mr Donaghy submitted that it was in the public interest that a costs order not be made against him as he was a fearless and successful advocate for his clients interests in the case before the court. In particular, it was, he contended, his effective cross-examination of the DOCS worker that brought to light a grave threat to the children. Thirdly he referred me to the case of Wilson v Department of Community and Human Services re Anna (No. 2) [2011] NSW SC 545 per Hallam AJ at 91 to 109.

16 Mr Donaghy stated that if any offence was taken, he apologised.

17 Again it is clear that Mr Donaghy does not, to this day, understand what he has done wrong. He is so convinced of his own righteousness in his defence of his actions in the case generally, that he cannot apparently comprehend the gravity of his misconduct. Mr Donaghy apologises for offence, without understanding that which he is apologising for, and without comprehension that he has to attend court when a matter is set for hearing.

18 On 17 April Mr Donaghy sent a fax, alerting me to a recent decision of the President of the Childrens Court, FACS v ARP, 10 February 2012, a decision I refer to below. Even as a humble non-specialist magistrate I had researched this decision well before 17 April in the preparation of this written judgment. Mr Donaghy also suggested that as this decision was binding on me I ought determine the matter in chambers and dismiss the application as "no doubt the court would wish to minimise the usage of the court's time and limit the inconvenience...". Mr Donaghy's newfound concern for wasting the courts time is somewhat ironic. In my view, this matter raises issues of general importance, and written reasons for judgment are appropriate.

The Cost to the Community

19 Grafton court sits as part of the Ballina circuit, which includes Maclean and Ballina courts. Where matters are vacated, or settled, the Grafton circuit assists Lismore and Tweed Heads circuits when possible, and visa versa. Thus, had Mr Donaghy attended court of 22 November, the matter would have undoubtedly settled, and then I would have sat elsewhere for the balance of 22 November and all of 23 November 2011. As it was, I was stuck in chambers in Grafton for all of 22 November, with the courthouse, two court staff and sheriff sitting idle, waiting for 23 November in the hope that Mr Donaghy would grace us with his presence. The lawyers (for the Department and for the Children) who had set aside 22 and 23 November for hearing also wasted a day. Thus, for example, Ms Steiner for the children billed Legal Aid the sum of $825 for that day. All of these funds come out of the public purse, and as I understand the funding for care matters, out of the coffers of the Legal Aid Commission and out of the coffers of the Department. No doubt both agencies have more productive uses of their budgets than to pay lawyers to sit in court awaiting the appearance of a practitioner who has made the unilateral decision not to attend.

20 It is unfortunate but true that in New South Wales adults and children sit in custody for many months waiting for their day in court. Civil matters are sometimes delayed for many months waiting for allocated court time. Care matters are given some priority because of the nature of the issues involved, but in the country, they are squeezed into already overcrowded lists, and other matters are often vacated to make way for them. On this circuit, to get two clear days is particularly difficult, and the listing of these matters involved significant delay for serious criminal matters where more than one day is also sought.

21 In short, the costs to the community were considerable, probably in the tens of thousands of dollars.

General legal responsibilities of practitioners toward the court

22 The duty of a legal practitioner in these circumstances is very clear - it is to appear. Not attending in the first place, and not attending when directed, and directing your client not to attend in some sort of unilateral decision to negotiate recently served material is a breach of that duty. Where the matters are set down part heard as a special fixture in care proceedings, the breach becomes a serious breach. When the practitioner evidences a complete lack of understanding of that duty in seeking to justify the non-appearance, that is a matter that falls well within the ambit of serious incompetence or serious misconduct of a legal practitioner without reasonable cause to borrow the terminology of s 99 of the Civil Procedure Act 2005.

Statutory basis of an order for costs against a practitioner

23 The first aspect to note is that these are not civil proceedings within the meaning of the Civil Procedure Act 2005, and thus s 99 does not apply.

24 Section 88 of the Children and Young Persons (Care and Protection) Act 1998 (the Care Act) is as follows:

"The Children's Court cannot make an order for costs in care proceedings unless there are exceptional circumstances that justify it in doing so."

25 In this case, there would be no difficulty with the hurdle of exceptional circumstances. However, there is authority for the proposition that a general power to order costs does not, in the absence of a specific provision, give a court the power to order costs against a legal practitioner personally.

26 This issue was considered by the President of the Childrens Court in a decision of Director General of the Department of Family and Community Services and ARP Unreported, 10 February 2012:

"The question then arises as to whether s 88 extends to provide the Children's Court with power to make a costs order against a non-party such as a legal representative for a party. Historically, courts which possessed inherent jurisdiction, had power, exercised summarily, to order a solicitor to pay the costs of legal proceedings. The summary jurisdiction to order a solicitor to pay costs was an aspect of a superior court's disciplinary jurisdiction. It was based on the court's right and duty to supervise the conduct of solicitors: Lemoto v Able Technical Pty Ltd & 2 Ors [2005] NSWCA 153 per McColl JA at [84] and [85]. In Lemoto, McColl JA said at [88] that the District Court, absent legislation, could not exercise a power to order solicitors to pay the costs of proceedings. Her Honour referred to Knaggs v JA Westaway & Sons Pty Ltd and Others (1996) 40 NSWLR 476 at 485. That same statement of principle would also apply to the Local Court and the Children's Court. In Knaggs the Court of Appeal was considering a statutory provision (s 148E of the District Court Act 1973 (now repealed)) that gave power to the District Court to make such an order. Similarly, the Local Court has a power under s 69 (1) of the Local Court Act 2007 to award costs in application proceedings "at its discretion and may determine by whom, to whom and to what extent costs are to be paid in or in relation to application proceedings." However, s 88 of the Care Act does not provide the Children's Court with a specific power to make a costs order against a non-party....

For the above reasons I have concluded that s 88 of the Care Act is to be read as providing the court with the power to award costs only against a party to the proceedings and not against a non-party such as a legal representative.

27 I have also considered whether s 15 of the Children's Court Act 1987 provides a legislative basis for an award of costs against a practitioner:

"The Court may, in relation to all matters in respect of which it has jurisdiction, make such orders, including interlocutory orders, as it thinks appropriate."

28 However in George v Children's Court of NSW [2003] NSWCA the court limited the application of s 15 to matters "conferred on the court by the Care Act" at 139.

29 In my view it is unfortunate that there are no clear powers to make an order for costs against a practitioner who behaves as Mr Donaghy has. Whether parliament intended by the broad brush of s 15 of the Childrens Court Act, or s 88 of the Care Act to enable costs against a practitioner is not apparent in the second reading speech or any other extrinsic material that I have researched.

30 The decision of the President of the Children's Court is highly persuasive authority, and I respectfully, albeit reluctantly, adopt the same view.

31 For completeness, it is necessary to deal with the submission of Mr Donaghy that to make an order for costs against him personally would have sent a message that it was acceptable for children to be assaulted and for DoCs to file misleading evidence in court. That submission is utterly lacking in merit. As has been shown in the civil jurisdiction, fearless and ethical advocates have nothing to fear from the court's power to make a costs order against a practitioner personally. It often has nothing to do with the merits or eventual outcome of the case. It is a safeguard against impropriety and waste where a party should not have to bear the burden of a practitioner's misconduct. In this case, I would not have hesitated to make an order against Mr Donaghy if I had the power to do so, despite the fact that his case had merit and he uncovered some significant issues relating to the care of the children through cross-examination. The two issues - merit and costs - are completely separate. In no way would such an order have suggested anything to the Department or to a person said to have abused the children. It would have been part of the courts disciplinary powers against a wayward practitioner who appeared before it, who is expected to understand the basic rules of advocacy and the practice notes applying to the jurisdiction.

Findings

32 Accordingly, I have reached the conclusion, based on the weight of persuasive authority, that I do not have the power to make an order for costs against a practitioner in this matter.

Actions

33 I will have the registry forward a copy of this judgment to the President of the Children's Court. There are three reasons for this. Firstly, it may be appropriate for him to consider representations to amend the legislation to permit an order for costs against a legal practitioner. It is hard to imagine a policy reason why costs against legal practitioners cannot be ordered in care proceedings, but can be in civil proceedings. Secondly, it may be appropriate for him to forward a copy of this judgment to the Legal Aid Commission of New South Wales so that they are at least aware of the waste in this case. Thirdly, it may be appropriate for him to consider a complaint to the Legal Services Commissioner regarding the conduct of the practitioner.

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Decision last updated: 22 June 2012