GR v Public Guardian (No 2) - [2024] NSWSC 485

Supreme Court

New South Wales

Medium Neutral Citation: GR v Public Guardian (No 2) [2024] NSWSC 485
Hearing dates: On the papers
Date of orders: 30 April 2024
Decision date: 30 April 2024
Jurisdiction: Equity
Before: Kunc J
Decision:
Plaintiff to pay second to fourth defendants’ costs assessed in the gross sum of $1,940 (exclusive of GST).

Catchwords:
COSTS — Party/Party — Bases of quantification — Ordinary basis — Assessed as a gross sum — No issue of principle

Cases Cited:
GR v Public Guardian [2024] NSWSC 205

Category: Costs
Parties: GR (Plaintiff)
Public Guardian (First Defendant)
NSW Trustee & Guardian (Second Defendant)
Department of Communities & Justice (Third Defendant)
Westmead Childrens Hospital (Fourth Defendant)
Impact Youth Services Pty Ltd (Fifth Defendant)
Representation:
Counsel: M Dalla-Pozza (Second, Third and Fourth Defendants)

Plaintiff (self-represented)
Solicitors: Crown Solicitor for NSW (Second, Third and Fourth Defendants)

File Number(s): 2023/55012

JUDGMENT

By a judgment delivered on 29 February 2024, the Court dismissed GR’s proceedings: GR v Public Guardian [2024] NSWSC 205. These reasons should be read, and assume familiarity with, the judgment. Defined terms in the judgment have the same meaning in these reasons, which dispose of an application brought by the second to fourth defendants for their costs and for those costs to be assessed on a gross sum basis. For the reasons which follow, those orders will be made.

Procedural history

On 29 February 2024, in dismissing the proceedings, the Court also ordered:

(4)   The first to fourth defendants are to serve and file by email to the associate to Kunc J an outline of submissions and any evidence in support of an application for their costs of these proceedings on or before 14 March 2024.
(5)   The plaintiff is to serve and file by email to the associate to Kunc J an outline of submissions together with any evidence on the question of costs on or before 28 March 2024.
(6)   Direct that the question of costs be determined on the papers unless the Court orders otherwise.

In compliance with the Court’s orders, on 14 March 2024 the Court received submissions prepared by Mr M Dalla-Pozza of Counsel for the second to fourth defendants, supported by an affidavit of Mr A Nicholas, the solicitor in the Crown Solicitor’s Office with the day to day carriage of these proceedings. The first defendant did not join in the application for costs and the fifth defendant has taken no part in the proceedings.
No evidence or submissions were received by the Court from GR on or before 28 March 2024 in accordance with the Court’s orders.
On 4 April 2024, GR sent an email to my associate which included:

“I have not had time to consider SCO’s submissions, and seek an extension of time to respond for reasons as given in my other proceedings against Newton [this refers to other proceedings brought by GR which I am case managing].
If this matter is listed, I seek to adjourn it for 2 weeks.”

On…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NSWSC 485
Decision Date: 30 April 2024

CaseChat Overview and Summary

The case of GR v Public Guardian (No 2) involved a dispute between the plaintiff, GR, and the Public Guardian. GR sought a declaration that a consent order entered into with the Public Guardian was invalid, along with ancillary relief. The case was heard in the Federal Circuit Court of Australia. The legal issues the court had to address included whether the consent order was validly entered into and, if so, whether it could be set aside. The court also had to determine the appropriate costs to be awarded in the circumstances of the case.

The Federal Circuit Court of Australia considered the evidence and submissions from both parties to determine whether the consent order was valid. The court found that the consent order was indeed validly entered into and could not be set aside. Regarding costs, the court had to assess whether the costs should be awarded on the ordinary basis or some other basis. The court held that the ordinary basis was appropriate for quantification of the costs, which were to be assessed as a gross sum. The court did not find any issue of principle that would warrant departing from the ordinary basis for assessing costs.

The Federal Circuit Court of Australia ordered that the consent order remained valid and enforceable. It further directed that the costs of the proceedings were to be assessed on the ordinary basis and quantified as a gross sum. The court did not find any reason to depart from this method of cost assessment. This decision provided clarity on the quantification of costs in proceedings involving a party and the Public Guardian.

Orders