Antonio Di Liristi v NSW Public Trustee
[2021] NSWSC 1630
•14 December 2021
Supreme Court
New South Wales
Medium Neutral Citation: Antonio Di Liristi v NSW Public Trustee and Anor [2021] NSWSC 1630 Hearing dates: On the papers Decision date: 14 December 2021 Jurisdiction: Equity - Expedition List Before: Sackar J Decision: See paras [12] – [14]
Catchwords: COSTS — Party/Party — Costs follow the event
Cases Cited: Kennedy v NSW Minister for Planning [2010] NSWLEC 269
Category: Costs Parties: Antonio Di Liristi (plaintiff)
NSW Public Trustee (first defendant)
NSW Public Guardian (second defendant)Representation: Counsel:
Solicitors:
Ms S Kaur Bains, M Auld (plaintiff)
Mr R Bhalla (1 & 2 defs)
Darby Jones (plaintiff)
Crown Solicitors NSW (defendants)
File Number(s): 2020/268337 Publication restriction: n/a
Judgment:
Introduction:
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I gave judgment in this matter on 22 October 2021. The plaintiff sought relief in respect of two hearings before NCAT in which he alleged he had been denied natural justice. I rejected the plaintiff’s case in its entirety.
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The outstanding question to be determined is the question of costs. By consent that matter was determined on the papers.
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The defendants seek their costs on the usual basis that costs follow the event.
The evidence:
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The plaintiff did not rely on any evidence on the question but the defendants relied upon an affidavit of Ms Elizabeth Mee of 29 November 2021.
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Her affidavit states that soon after the plaintiff lodged his appeal in this Court on 15 September 2020 she wrote to him on 9 October indicating the defendants may well seek costs if it was successful in the proceedings. The plaintiff wrote back the same day indicating he would himself seek costs if successful.
Legal principles:
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The rules of court provide that absent an order to the contrary costs will usually follow the event. Although in its protective jurisdiction the court usually exercises its discretion not by reference to a rule that costs follow the event but having regard to what in all the circumstances seems proper. The notion stems from protective proceedings not being adversarial as such. But here that is not how the plaintiff’s case was conducted and any order for costs will not be borne by any protected person.
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The authorities make clear that the fact that a party is impecunious is irrelevant in resisting an order for costs, Kennedy v NSW Minister for Planning [2010] NSWLEC 269, per Biscoe J.
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Equally I do not regard it as relevant that the defendants initially filed submitting appearances. I requested the defendants to provide a contradictor because of the issues that arose for consideration.
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Despite a request to reconsider his position the plaintiff was it seems determined to pursue his cases in this court.
The submissions of the parties:
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In short compass the defendants seek an order for costs on the usual basis given the way in which the case was conducted and notwithstanding the apparent impecuniosity of the plaintiff. In other words there is nothing exceptional in this case that should disturb the discretion being exercised on the usual basis with the consequence that the plaintiff should pay the defendants’ costs of the proceedings.
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The plaintiff submits he is a disability pensioner who had pro bono assistance at the hearing. The proceedings were brought out of concern for his aged parents’ care and interests. That the plaintiff’s involvement in the proceedings should be seen as defensive in that he has attempted to assert and defend the rights of his parents not his own.
Consideration:
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In my view nothing arises in this case which should as a matter of discretion lead to any other result than the plaintiff paying the defendants’ costs of the proceedings.
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The proceedings were conducted on the plaintiff’s behalf on a pro bono basis by professional and competent counsel. His case in NCAT was that he was the most appropriate person to care for his aged parents and should be appointed accordingly their guardian. They were not proceedings brought in the public interest. The proceedings before the court were conducted in traditional adversarial manner. The plaintiff was put squarely on notice of the possible consequences of his bringing the proceedings in this court.
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More importantly he lost the proceedings on all issues he raised. In my view costs ought to follow the event in which case I would make an order that the plaintiff pay the defendants’ costs of the proceedings on an ordinary basis.
Decision last updated: 14 December 2021
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