Blackman v Blackman

[2003] NSWSC 1200

CITATION:	Blackman v Blackman; Estate W A Blackman [2003] NSWSC 1200
HEARING DATE(S):	5 December 2003
JUDGMENT DATE:	5 December 2003
JURISDICTION:	Equity Probate List
JUDGMENT OF:	Hamilton J
DECISION:	No power to grant certificate under Suitors' Fund Act 1951 because trial had not commenced when fixture was vacated.
CATCHWORDS:	APPEAL AND NEW TRIAL [267] - Appeal - Practice and procedure - New South Wales - Suitors' fund - Power to grant indemnity certificate - General principles as to grant or refusal - Fixture vacated by Judge because of exigencies of Court's business - Vacation before commencement of trial - No fault on part of parties.
LEGISLATION CITED:	Suitors Fund Act 1951 s 6A(1)(c)
PARTIES :	Andrew William Blackman (P) Rosemary Blackman (D1) Patricia Jessie Underwood (D2)
FILE NUMBER(S):	SC 119694/00
COUNSEL:	A V Fletcher, Solicitor (P)
SOLICITORS:	A V Fletcher (P) Cameron & Myers (Ds)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST

HAMILTON J

FRIDAY, 5 DECEMBER 2003

119694/00 ANDREW WILLIAM BLACKMAN v ROSEMARY BLACKMAN & ANOR; ESTATE OF WILLIAM ALLAN BLACKMAN

JUDGMENT

1 HIS HONOUR: This is an application by the plaintiff in the proceedings for a certificate in relation to costs. The application is made under s 6A(1)(c) of the Suitors Fund Act 1951, which gives to the Director General of the Attorney General's Department power to pay certain costs from the fund in certain circumstances including:

“6A Costs of proceedings not completed by reason of death of judge etc

(1) Where on or after the day on which Her Majesty’s assent to the Suitors’ Fund (Amendment) Act 1959 is signified:
……
(c) the hearing of any civil or criminal proceedings is discontinued and a new trial ordered by the presiding judge or magistrate for a reason not attributable in any way to disagreement on the part of the jury, where the proceedings were with a jury, or to the act, neglect or default, in the case of civil proceedings, of all or of any one or more of the parties thereto or their counsel or attorneys, or, in the case of criminal proceedings, of the accused or the accused’s counsel or attorney, and the presiding judge or magistrate grants a certificate (which certificate the presiding judge or magistrate is hereby authorised to grant):

(i) in the case of civil proceedings — to any party thereto stating the reason why the proceedings were discontinued and a new trial ordered and that the reason was not attributable in any way to disagreement on the part of the jury, where the proceedings were with a jury, or to the act, neglect or default of all or of any one or more of the parties to the proceedings or their counsel or attorneys, or

(ii) in the case of criminal proceedings — to the accused stating the reason why the proceedings were discontinued and a new trial ordered and that the reason was not attributable in any way to disagreement on the part of the jury or to the act, neglect or default of the accused or the accused’s counsel or attorney,
and any party to the civil proceedings or the accused in the criminal proceedings or the appellant, as the case may be, incurs additional costs (in this section referred to as additional costs) by reason of the new trial that is had as a consequence of the proceedings being so rendered abortive or as a consequence of the order for a new trial, as the case may be, then the Director-General may, upon application made in that behalf, authorise the payment from the Fund to the party or the accused or the appellant, as the case may be, of the costs (in this section referred to as original costs), or such part thereof as the Director-General may determine, incurred by the party or the accused or the appellant, as the case may be, in the proceedings before they were so rendered abortive or the conviction was quashed or the hearing of the proceedings was so discontinued, as the case may be.”

2 The circumstances of this case are that it was originally fixed for hearing before me on 30 and 31 May 2002. Unfortunately, shortly before the first day of the fixture it became apparent to me that there was a case of pressing urgency which it was necessary for me to hear on those days and that I should not be able to hear these proceedings on the days fixed. Usually where a Judge of this Division is in such circumstances the Judge is able to find another Judge of the Division who can try the displaced case on the days fixed. However, for the first time in some six years on the Bench I was unable to find a replacement Judge in this case. The order that I was therefore obliged to make was simply that the fixture be vacated and the matter sent to the Registrar to be refixed. It was subsequently fixed for hearing on 31 October and 1 November 2002, but before that time it was settled as I have indicated.

3 It was no more than two days before the first day of the fixture that I found that I was obliged to act in this fashion. When I was first approached for a certificate under s 6A(1)(c) I was of the mind that I was able to grant a certificate. The case certainly fitted the circumstances envisaged by the section in that the fixture before me was unable to proceed for a reason that was not attributable in any way to the act, neglect or default of one or more of the parties to the proceedings (including the plaintiff) or their legal representatives. That conclusion flows from the facts that I have set out above.

4 However, upon examining the provision more closely, I noted that a certificate could be granted only where the hearing of civil proceedings was "discontinued and a new trial ordered by the presiding judge". Unfortunately, in my view the situation where a trial has not commenced and where after vacation of the fixture new trial dates are fixed by the Registrar cannot be forced within the concept that the proceedings are "discontinued" and that there is "a new trial ordered". Those words appear to me to apply only to a situation where a hearing or a trial has actually commenced and is aborted and a fresh hearing is ordered to commence de novo. I was referred to and have been able to find no authority which casts light upon the construction of this provision.

5 I therefore find myself regretfully unable to grant a certificate despite the fact that the rest of the criteria of s 6A(1)(c) are met. It seems to me that the plaintiff's only avenue is to apply under s 6C of the Act to the Director General for a payment under that section. It certainly seems to me that such a payment “would be within the spirit and intent of” s 6A. But under s 6C my opinion is not the relevant opinion and the matter is to be decided entirely by the opinion of the Director General.

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Last Modified: 03/19/2004