Collins v Attorney General of New South Wales

[2013] NSWCA 208

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Collins v Attorney General of New South Wales [2013] NSWCA 208

Hearing dates:

28 June 2013

Decision date:

09 July 2013

Before:

McColl JA at [1], Gleeson JA at [35]

Decision:

Application for extension of time to file the summons for leave to appeal dismissed with costs

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - extension of time for leave to appeal - where applicant tutor sought leave to appeal against costs order against him personally - whether adequate explanation for delay - whether applicant had a fairly arguable case

COSTS - liability of tutor for costs

Legislation Cited:

Civil Procedure Act 2005
Mental Health Act 2007
Mental Health (Forensic Provisions) Act 1990
Uniform Civil Procedure Rules

International Covenant on the Rights of Persons with Disabilities

Cases Cited:

Adams by her next friend O'Grady v State of New South Wales [2008] NSWSC 1257
Adams by her next friend O'Grady v State of New South Wales (No 2) [2008] NSWSC 1394
Chand v RailCorp [2010] NSWCA 233
Farrell v Royal Kings Park Tennis Club (Inc) [2007] WASCA 173
Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458
Jaffari v Grabowski [2012] NSWCA 425
Jaffari v Grabowski [2013] NSWCA 114
NSW Insurance Ministerial Corporation v Abualfoul [1999] FCA 433; (1999) 94 FCR 247
Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61
Yakmor v Hamdoush (No 2) [2009] NSWCA 284; (2009) 76 NSWLR 148

Category:

Principal judgment

Parties:

Brett Anthony Collins - Applicant
Attorney General of New South Wales - Respondent

Representation:

Counsel:
Applicant in person
A E Munro - Respondent
Solicitors:
Applicant in person
I V Knight, Crown Solicitor - Respondent

File Number(s):

CA 2013/29443

Publication restriction:

No

 Decision under appeal 

Citation:

A by his Tutor Brett Anthony Collins v Mental Health Review Tribunal [2010] NSWSC 1363

Date of Decision:

2010-11-26 00:00:00

Before:

Johnson J

File Number(s):

SC 2010/62963

Judgment

1. McCOLL JA: This is an application by Mr Brett Collins for an extension of time to seek leave to appeal from a decision of Johnson J that the respondent, the Attorney General in and for the State of New South Wales, may recover from him its costs of and incidental to proceedings more particularly described below: A by his Tutor Brett Anthony Collins v Mental Health Review Tribunal [2010] NSWSC 1363.

1. The plaintiff before Johnson J was referred to by the pseudonym "A" because s 162(1) of the Mental Health Act 2007 prohibits the publication of the name of any person to whom a matter before the Tribunal relates except with the Tribunal's consent. "A" was a forensic patient for the purposes of the Mental Health (Forensic Provisions) Act 1990 ("MHFP Act") and, accordingly, as Johnson J found (at [2]) was a person under a legal incapacity by virtue of s 3(1) of the Civil Procedure Act 2005. Mr Collins is, apparently, "A's" primary carer (s 71, Mental Health Act 2007) and was also his tutor for the purposes (at least) of the proceedings below: Uniform Civil Procedure Rules ("UCPR") 7.15(1).

1. The proceedings before Johnson J were the hearing of an application by "A" for leave to appeal pursuant to s 77A(1) of the MHFP Act from a determination of the Mental Health Review Tribunal on 11 February 2010.

1. Section 77A(1) of the MHFP Act permits a forensic patient who was a party to a proceeding before the Tribunal under that Act to appeal by leave to the Supreme Court from any determination of the Tribunal on a question of law or on any other question. The application before Johnson J was the first such application for leave to appeal brought pursuant to s 77A.

1. Three different firms of solicitors had represented "A" in the course of the s 77A application. However, shortly before the matter came on for hearing, the solicitor in the last of those firms filed a Notice of Ceasing to Act communicating that "his instructions had been withdrawn by the plaintiff's tutor on 16 November 2010": primary judgment at [7]. Johnson J, without opposition from the respondent, gave Mr Collins leave to proceed without a solicitor: UCPR 7.14(2).

1. The Tribunal is obliged to review the case of each forensic patient every six months: s 46(1), MHFP Act. The s 77A application arose from complaints "A" sought to advance concerning the Tribunal's fourteenth such review. After the s 77A application was filed but before it was heard, a differently constituted Tribunal convened to undertake what, I assume, was the fifteenth review hearing in respect of "A" on 30 September 2010. The Tribunal was informed that "A" and the applicant did not wish to participate in that review but, rather, to proceed with the s 77A application: primary judgment at [27].

1. "A" sought to raise six complaints on his application for leave to appeal: see primary judgment (at [51]). Johnson J refused leave to appeal in respect of all of them essentially because, having regard to the issues they sought to raise and the facility of further review pursuant to s 46 of the MHFP Act, there was no practical utility in the s 77A application: primary judgment at [63] - [75], [80].

1. The respondent sought costs relying, in part, on a letter his solicitors sent to "A's" solicitors on 27 July 2010 which had "communicated a clear way forward, and the lack of practical utility in ["A"] pressing his application for leave to appeal [and] contained an offer that the proceedings be discontinued by ["A"] with no order as to costs"; "A" had not accepted that offer: primary judgment (at [82]). The respondent also sought an order that he be able to recover from Mr Collins any costs "A" was ordered to pay: primary judgment at [83].

1. The primary judge concluded (at [87]) that he should apply the usual rule that costs follow the event: UCPR 42.1. He found, in substance, that having regard to the contents of the 27 July 2010 letter, "A" was on notice of the respondent's position with respect to costs and had the opportunity to discontinue with no costs consequences but had "pressed on ... in circumstances where the outcome of the application was more than reasonably predictable": primary judgment at [87]. His Honour also acceded to the respondent's application that the costs "A" was ordered to pay might be recovered from Mr Collins, saying:

"88 In Adams By Her Next Friend O'Grady v State of New South Wales, Rothman J concluded at [7]-[9] that, in the circumstances of that case, it would be a travesty of justice if the State of New South Wales were to pursue the tutor for costs separately and distinctly from the Plaintiff.

89 In my view, the circumstances of that case are remote from those of the present case. Here, the Plaintiff has been represented by three different solicitors during the course of the proceedings, with instructions to the last solicitor being withdrawn by the tutor on 16 November 2010. The Second Defendant has made plain, for some months, the basis upon which the present application for leave to appeal would be opposed, and the Plaintiff has determined nevertheless to proceed with the application. In my view, the Second Defendant's submissions were clearly and identifiably correct and that has been apparent for some time. A consequence of the Plaintiff persisting with this application was that the Tribunal determined not to proceed with the review hearing on 30 September 2010, in circumstances where counsel appearing for the Plaintiff informed the Tribunal that the Plaintiff did not wish to willingly participate in that process (because of this appeal) and, in any event, contended that the review hearing ought be adjourned to ensure that Dr Westmore's report was available.

90 I have taken into account the fact that this is the first application for leave to appeal under s 77A(1) MHFP Act in considering whether an order for costs should be made. Notwithstanding the novelty of the application, I am clearly of the view that the Plaintiff had no reasonable prospect of obtaining leave to appeal in this case. I am satisfied that costs should follow the event, and that there is no good reason why the Second Defendant ought not be able to seek to recover costs from the Plaintiff's tutor."

1. The primary judgment was handed down on 26 November 2010 (the "material date"). No notice of intention to seek leave to appeal was filed. The summons seeking leave to appeal should have been filed and served, accordingly, within 28 days after the material date: UCPR 51.10(1)(b). Taking into account that that period ran into the end of the 2010 calendar year during which there would be periods when the registry was closed and time did not run (UCPR 1.11(4)), the summons seeking leave to appeal should at least have been filed by the end of that year. The summons seeking leave to appeal was filed on 30 January 2013, just over two years out of time.

1. The discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties, bearing in mind that upon the expiry of the time for appealing (or, in this case, seeking leave to appeal), the respondent has "a vested right to retain the judgment": Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458 (at 459) per McHugh J. The factors identified as relevant to determining how to exercise the discretion are the length of the delay, the reason for the delay, whether the applicant has a fairly arguable case and the extent of any prejudice suffered by the respondent: Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 (at [55]) per Basten JA; Chand v RailCorp [2010] NSWCA 233 (at [7]) per McColl JA.

1. It is incontrovertible that the delay of just over two years is egregious.

Reasons for the delay

1. Mr Collins advanced two reasons to explain the length of the delay. The first was that as he was unrepresented and not legally qualified, he was unaware he had a right to appeal. The second was that he was engaged in negotiations about the withdrawal of the costs order from shortly after the delivery of judgment until a week before the application for leave to appeal was filed with "politicians and the Attorney General". Accordingly, he contended, he expected the costs order "may be withdrawn and that there would be no need to appeal". This expectation was disabused, he contended, on 23 January 2013 when the Crown Solicitor informed him that his request to have the costs order withdrawn had been denied. At the same time as Mr Collins asserted these negotiations were continuing, he also said that he had incurred delays in seeking to correspond with his lawyers concerning, in substance, the circumstances in which those solicitors had ceased to act in the proceedings.

1. The respondent disputed that negotiations concerning the costs orders continued throughout the period for which the applicant contended. Rather he asserted any such negotiations concluded in December 2011 when costs assessments in respect of the s 77A application in the sum of $32,874.50 were entered as a judgment against Mr Collins in the Local Court of New South Wales. Thereafter the respondent took steps to enforce payment of the outstanding amount of that judgment including, most recently in February 2013, securing the issue of a warrant for the applicant's arrest for examination pursuant to s 97 of the Civil Procedure Act 2005.

1. The applicant's explanation for the delay is unsatisfactory. It seems remarkable that he was unaware of the facility of an application for leave to appeal bearing in mind that the primary proceedings concerned just such an application, albeit in respect of the Tribunal's decision. There was, for example, no explanation of how he said he suddenly became aware of the availability of an application for leave to appeal prior to filing the leave documents in January 2013. However, even assuming ignorance of that right, that does not justify delay, let alone the period of the delay: Jaffari v Grabowski [2012] NSWCA 425 (at [9]) per Barrett JA; affirmed Jaffari v Grabowski [2013] NSWCA 114 (at [100]) per McColl JA (Ward JA agreeing). As McHugh J said in Gallo v Dawson (at 459), "[l]ack of legal knowledge is a misfortune, not a privilege".

1. The alternative proposition that ongoing negotiations between the parties could justify the delay is equally unsound. It is unnecessary to resolve the factual controversy as to how long negotiations between the parties extended. There is no suggestion that the respondent induced the applicant to believe that he would waive the obligation to comply with the time for filing any appellate process.

1. Time periods are fixed for steps to be taken in legal proceedings to ensure that they move forward efficiently and do not become stale. The obligation to ensure the just, quick and cheap resolution of the real issues (s 56(1), Civil Procedure Act 2005) is imposed on all parties to civil proceedings, whether or not they are represented and whether or not there are underlying negotiations to resolve the parties' controversy.

Whether there is a fairly arguable case

1. The principal focus of Mr Collins' argument concerning the viability of his appeal lies in his assertion that the primary judge fell into manifest error in his costs decision in assuming that Mr Collins had pursued the proceedings contrary to legal advice, in particular that he had withdrawn instruction to "A's" last solicitor.

1. Mr Collins relied upon what he contended was "strong evidence" to establish that he had not withdrawn any solicitor's instructions. Rather, he asserted the evidence established that junior counsel who had agreed to represent "A" on the leave application before the primary judge had withdrawn because he was double-booked and that senior counsel similarly engaged had withdrawn because the senior counsel was dependent upon the junior counsel's work to be able to proceed. He complained that the primary judge failed to take into consideration his submission that, rather than withdrawing instructions to "A's" legal representatives, it was they who decided not to proceed with the case.

1. Mr Collins also seeks to challenge the primary judge's conclusion that he persisted with the leave application where, in substance, the case was unmeritorious. He sought to rely, in this respect, on an opinion from senior counsel who, he contended, opined that the case had reasonable prospects of success. He also relied upon the inference which he contended could be drawn from the fact that he had legal representatives until a week before the hearing as illustrating that, in their opinions, the case had merit.

1. I do not share the applicant's apparent understanding of senior counsel's opinion. The undated opinion appears to have been written in response to the offer in the 27 July 2010 letter to which I have referred. Senior counsel advised that that letter's proposal as to the outcome of the leave application was a practical and appropriate course. As I read senior counsel's advice, he recommended that the next review before the Tribunal proceed on the basis that at that hearing "the issues" (whatever they were) would be fully argued so that, if the Tribunal expressed the same view as to its lack of power (which presumably was said to have some bearing on the extant s 77A application), there would be a reasonable basis for an arguable further s 77A application.

1. The applicant also submitted that the primary judge failed to take into account in making his costs orders what he asserted was bias shown by the Tribunal, the alarming precedent the order would create for other primary carers, the public interest in the proceedings sought to be pursued by the leave application on "A's" behalf (relying in this respect upon issues said to involve the "discrimination of the welfare of mental health consumers within the criminal justice system") and the International Covenant on the Rights of Persons with Disabilities.

1. Finally, the applicant submitted that the primary judge failed to give any reasons for rejecting his submissions concerning the making of the adverse costs order.

1. The respondent submits that the fact (whether it be true or not) that the applicant withdrew instructions from his solicitors was not the primary basis of the costs order. Rather, he contended, the primary judge's reasons for that order included the fact that the applicant had been represented by three different solicitors during the course of the proceedings, that he had been afforded the opportunity to discontinue the proceedings with no costs consequences, that he had no reasonable prospects of obtaining leave to appeal and that he had been on notice of the basis on which the application would be opposed for some months.

1. Next, the respondent submitted that insofar as the primary judge accepted his submission concerning the applicant's earlier representation and the fact that the last solicitor said his instructions had been withdrawn, this was a submission to which the applicant did not respond before the primary judge. Thirdly, the respondent contended that the primary judge was entitled to rely upon the solicitor's statement in the Notice of Ceasing to Act. Insofar as the applicant sought to rely upon the other matters to which I have referred (at [22] above), the respondent submitted that these were not matters upon which the applicant relied when heard on the costs issues in the primary proceedings and, accordingly, were not germane to the primary judge's consideration of the costs issue.

1. Finally, the respondent relied upon the substantial prejudice he submitted he had suffered by reason of the lapse of time between the making of the costs order and the filing of the application for an extension of time in which to seek leave to appeal. The respondent contended he was entitled to rely both on a presumption of prejudice and, too, on the steps he had taken to seek to enforce the costs order in the course of which he has incurred costs of the order of $16,500.

1. In my view Mr Collins does not have a fairly arguable case which would justify leave to appeal, let alone an extension of time in which to do so.

1. It should be noted at the outset that a costs order against "A" was almost inevitable having regard to the failure of his application: UCPR 42.1. The primary judge's order that Mr Collins pay the costs order made against "A" was also almost inevitable because, as "A's" tutor, he was responsible for the proper conduct of the action and for costs purposes is to be regarded as a party: Yakmor v Hamdoush (No 2) [2009] NSWCA 284; (2009) 76 NSWLR 148 (at [44] - [45]) per Giles JA (with whom Ipp and Tobias JJA agreed).

1. As the primary judge said (at [86]):

"One of the purposes of appointing a tutor is to have a person on the record who is personally liable for costs: Dey v Victorian Railways Commissioners [1949] HCA 1; 78 CLR 62 at 113. That means a defendant may enforce a costs order directly against a tutor where the plaintiff is legally incapacitated: Yakmor v Hamdoush (No 2) [2009] NSWCA 284 at [24]-[25], [44]-[45]."

1. In Yakmor v Hamdoush (at [23]), the second judgment to which the primary judge referred, Giles JA referred with approval to Buss JA's statement in Farrell v Royal Kings Park Tennis Club (Inc) [2007] WASCA 173 (at [17]) that:

"it is well established that if an action brought by a plaintiff under a disability is dismissed, and the defendant is awarded costs, the next friend of the plaintiff is personally liable to the defendant for the costs".

See also NSW Insurance Ministerial Corporation v Abualfoul [1999] FCA 433; (1999) 94 FCR 247 (at [27] - [29]) per Sackville J.

1. Adams by her next friend O'Grady v State of New South Wales (No. 2) [2008] NSWSC 1394 which the respondent drew to the primary judge's attention was a very different case. The proceedings concerned a claim for damages arising out of what was alleged to be the State's negligence while the plaintiff was in its care at a youth detention facility in allowing her access to a knife which she used to kill a teacher at the facility: see Adams by her next friend O'Grady v State of New South Wales [2008] NSWSC 1257. In Adams, the plaintiff was under a legal incapacity and was represented by her tutor who assumed her care as a foster parent at the request of the State. It is hardly surprising that Rothman J formed the view (at [7] - [9]) to which the primary judge referred.

1. Further, Rothman J found (at [8]) that the tutor had not acted unreasonably in commencing the proceedings. In this case, the primary judge concluded that the tutor acted unreasonably in substance in not accepting the 27 July 2010 offer. Contrary to the applicant's apparent understanding of the situation, costs orders are frequently made against parties who unreasonably contest proceedings, even though it might be assumed they had legal advice that they had some prospects of success. The purpose of offers such as that contained in the 27 July 2010 letter is to focus the opponent's attention on the costs risk of continuing with the proceedings - usually to foreshadow an application for indemnity costs - but also to lay the ground for resisting an application for "some other order" under UCPR 42.1.

1. Finally I observe that Mr Collins did not seek to resist the costs order on any of the bases referred to (at [22] above) and, accordingly, it cannot be said that his Honour erred in not taking them into consideration.

1. I would dismiss the application for extension of time to file the summons for leave to appeal with costs.

1. GLEESON JA: I agree with McColl JA

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Decision last updated: 09 July 2013