Avsar v Public Trustee

Case [2011] WASCA 77

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   AVSAR -v- PUBLIC TRUSTEE [2011] WASCA 77

CORAM:   PULLIN JA

HALL J

HEARD:   10 MARCH 2011

DELIVERED          :   4 APRIL 2011

FILE NO/S:   CACV 64 of 2010

BETWEEN:   JENNIFER PATRICIA AVSAR

Appellant

AND

PUBLIC TRUSTEE
First Respondent

JOHN ROBERT COWAN
Second Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :KENNETH MARTIN J

Citation  :AVSAR -v- PUBLIC TRUSTEE [2010] WASC 11

File No  :CIV 1530 of 2004

Catchwords:

Wills and probate - Appeal against refusal of application for Letters of Administration - Grounds of appeal - Whether grounds identify errors of law or fact - Whether grounds reasonably arguable

Legislation:

Public Trustee Act 1941 (WA), s 14
Supreme Court (Court of Appeal) Rules 2005 (WA), r 32(4)

Result:

Grounds of appeal struck out
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     In person

First Respondent           :     Mr B W Ashdown

Second Respondent      :     Ms K Hill

Solicitors:

Appellant:     In person

First Respondent           :     Public Trustee

Second Respondent      :     Hartrey Legal

Case(s) referred to in judgment(s):

Avsar v Binning [2009] WASCA 219

Avsar v Cowan (dec'd) [2009] FCWA 147

Bull v Fulton [1942] HCA 13; (1942) 66 CLR 295

Glew v Frank Jasper Pty Ltd [2010] WASCA 87

  1. PULLIN JA:  I agree with the reasons of Hall J.

    HALL J: 

Background

  1. On 18 March 2010 Kenneth Martin J dismissed an application brought by Mrs Avsar, the appellant, in respect of the administration of the estate of her late mother.  On 26 March 2010 Mrs Avsar filed an appeal notice in respect of that decision. 

  2. On 8 November 2010 an order was made that the grounds of appeal be struck out with liberty to file new grounds. The original grounds were struck out because none of them identified an error of fact or law in the primary judge's reasons for decision and therefore failed to comply with r 32(4) of the Supreme  Court (Court of Appeal) Rules 2005 (WA). On 10 December 2010 Mrs Avsar filed new grounds.

  3. On 9 February 2011 a registrar's notice to attend was issued.  This gave notice that the matter would be listed for determination of whether the new grounds of appeal should be struck out.  If struck out or leave is not granted to amend, the consequence would be that there would be no grounds of appeal and the appeal would be dismissed.

  4. A hearing was conducted on 10 March 2011 at which the appellant appeared unrepresented.  The nature of the proceedings was explained and the appellant confirmed that she understood.

Nature of the primary proceedings

  1. Before turning to the new grounds it is necessary to explain the nature of the proceedings before Kenneth Martin J.  It is convenient to refer to his Honour's judgment in this regard:

    The papers filed by Mrs Avsar in support of her application do not disclose with requisite clarity the precise nature of the relief…

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Avsar v Public Trustee [2011] WASCA 77
Case
[2011] WASCA 77
Decision Date

CaseChat Overview and Summary

The case of Avsar v Public Trustee involved the appellant, Avsar, who sought to appeal against the refusal of an application for Letters of Administration. The respondents, the Public Trustee and another party, were involved in the original proceedings. The primary issue in this appeal was whether the grounds of appeal identified any errors of law or fact, and if they were reasonably arguable. The Court of Appeal considered these questions and concluded that the grounds of appeal did not identify any such errors and thus failed to comply with the relevant rules.

The reasoning of the Court of Appeal was that none of the proposed grounds of appeal identified an error of law or fact in the primary judge's reasons for decision. This conclusion was based on the application of rule 32(4) of the Supreme Court (Court of Appeal) Rules 2005 (WA). The appeal was dismissed as a result, and the respondents sought costs against the appellant. The appellant opposed the costs and argued that the court had an unfettered discretion and should not make an order in this case. The appellant also claimed that she had been assured by the first respondent that no costs would be sought and that some of her grounds were valid.

The Court of Appeal found that the first respondent had not conceded that no costs would be sought if the appellant did not consent to the dismissal of the appeal. The court also rejected the appellant's contention that some of the grounds of appeal had merit, as this contradicted a previous conclusion reached by the court. The court held that an unsuccessful party must satisfy the court that there are good reasons why they should not pay the other parties' costs, and in this case, there were no such reasons. Therefore, the court ordered that the appellant pay the first and second respondents' costs of appeal, including any reserved costs, to be taxed, with a separate allowance for certain applications.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JUDGMENT OF THE COURT: On 4 April 2011 this court published its reasons for concluding the appellant's proposed grounds of appeal should be struck out because none of them identified an error of fact or law in the primary judge's reasons for decision and therefore failed to comply with r 32(4) of the Supreme Court (Court of Appeal) Rules 2005 (WA). As a consequence of that conclusion the appeal was dismissed: Avsar v Public Trustee [2011] WASCA 77. The respondents sought costs which the appellant opposed. Accordingly, the question of costs was reserved and directions were given for the filing of written submissions by each party and it was ordered that the question of costs be determined on the papers. The written submissions have now been filed. The respondents submit that generally costs will follow the event and that there are no good reasons why such an order should not be made in this case. The appellant submits that the Court has an unfettered discretion in regard to costs and that that discretion should be exercised by declining to make an order in the circumstances of this case. The appellant submits that the first respondent gave her an assurance that no costs would be sought. She also submits that some of her grounds were valid and ought not to have been dismissed. As regards the contention that the first respondent induced the appellant to believe that no costs would be sought, this is denied by the first respondent. The first respondent submits that letters that it wrote to the appellant on 8 September and 13 December 2010 were to the effect that it intended to make an application to strike out the grounds of appeal and to dismiss the appeal but that if the appellant consented to the dismissal it would not seek costs. Clearly that does not involve a concession that if the appellant did not consent and persisted with her appeal no costs would be sought. As regards the contention that some of the grounds of appeal had merit, that is simply a contradiction of a conclusion already reached by the Court. The appellant's belief in the justice of her cause and her sense of grievance at the expenses she has incurred do not provide reasons why, as the unsuccessful party, she should be relieved of any obligation to meet the respondents' costs. It is clear that while the court has broad discretion as to costs, generally costs will follow the event: Rules of the Supreme Court 1971 O 66 r 1(1). An unsuccessful party is obliged to satisfy the court that there are good reasons why it should not pay the other parties' costs: Nikolaou v Papasavas, Phillips & Co [1989] HCA 11; (1989) 166 CLR 394, 407. In this case there are no reasons which justify the court departing from the general rule. Accordingly, the appropriate order is that the appellant pay the first and second respondents' costs of appeal, including any reserved costs, to be taxed. Such costs to include a separate allowance for the first respondent's application dated 17 September 2010 and heard on 8 November 2010 and the application listed of the court's own motion by notice dated 9 February 2011 and heard on 10 March 2011.

Ratio Decidendi

Legal Principle Established

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